ENERGY AND ENVIRONMENT CABINET
Department of Environmental Protection
Division of Water
(Amended After Comments)
401
KAR 10:031. Surface water standards.
RELATES
TO: KRS 146.200-146.360, 146.410-146.535, 146.550-146.570, 146.600-146.619,
146.990, 224.1-010[224.01-010], 224.1-400[224.01-400],
224.16-050, 224.16-070, 224.70-100-224.70-140, 224.71-100-224.71-145,
224.73-100-224.73-120,
STATUTORY
AUTHORITY: KRS 146.220, 146.241, 146.270, 146.410, 146.450, 146.460, 146.465,
224.10-100, 224.16-050, 224.16-060, 224.70-100, 224.70-110, 40 C.F.R. Part 131,
16 U.S.C. 1271-1287, 1531-1544, 33 U.S.C. 1311, 1313, 1314, 1341
NECESSITY,
FUNCTION, AND CONFORMITY: KRS 224.10-100 requires the cabinet to develop and
conduct a comprehensive program for the management of water resources and to
provide for the prevention, abatement, and control of water pollution. This administrative
regulation and 401 KAR 10:001, 10:026, 10:029, and 10:030 establish procedures
to protect the surface waters of the Commonwealth, and thus protect water
resources. This administrative regulation establishes water quality standards
that consist of designated legitimate uses of the surface waters of the Commonwealth
and the associated water quality criteria necessary to protect those uses.
These water quality standards are minimum requirements that apply to all
surface waters in the Commonwealth of Kentucky in order to maintain and protect
them for designated uses. These water quality standards are subject to periodic
review and revision in accordance with the Clean Water Act, 33 U.S.C.
1251-1387, 40 C.F.R. 131, and KRS Chapter 224.
Section
1. Nutrients Criterion. Nutrients shall not be elevated in a surface water to a
level that results in a eutrophication problem.
Section
2. Minimum Criteria Applicable to All Surface Waters. (1) The [following]minimum
water quality criteria established in this administrative regulation
shall be applicable to all surface waters including mixing zones, with the
exception that toxicity to aquatic life in mixing zones shall be subject to the
provisions of 401 KAR 10:029, Section 4. Surface waters shall not be
aesthetically or otherwise degraded by substances that:
(a)
Settle to form objectionable deposits;
(b)
Float as debris, scum, oil, or other matter to form a nuisance;
(c)
Produce objectionable color, odor, taste, or turbidity;
(d)
Injure or[,] are chronically or acutely toxic to or produce adverse
physiological or behavioral responses in humans, animals, fish, and other
aquatic life;
(e)
Produce undesirable aquatic life or result in the dominance of nuisance
species; or
(f)[1.]
Cause fish flesh tainting.
(2)[2.]
The concentration of phenol shall not exceed 300 mg/L as an instream value.
(3)[(2)]
The water quality criteria for the protection of human health related to fish
consumption in Table 1 of Section 6 of this administrative regulation shall
apply[are applicable] to all surface water at the edge of the
assigned mixing zones except for those points where water is withdrawn for
domestic water supply use.
(a)
The criteria are established to protect human health regarding[from]
the consumption of fish tissue[,] and shall not be exceeded.
(b)
For those substances associated with a cancer risk, an acceptable risk level of
not more than one (1) additional cancer case in a population of 1,000,000
people, or 1 x 10-6 shall be utilized to establish the allowable
concentration.
Section
3. Use Designations and Associated Criteria. (1) Surface waters may be
designated as having one (1) or more legitimate uses established in 401 KAR
10:026 and associated criteria protective of those uses. [Those uses are
listed in 401 KAR 10:026.]Nothing in this administrative regulation shall
be construed to prohibit or impair the legitimate beneficial uses of these
waters. The criteria in Sections 2, 4, 6, and 7 of this administrative
regulation represent minimum conditions necessary to:
(a)
Protect surface waters for the indicated use; and
(b)
Protect human health regarding[from] fish consumption.
(2)
On occasion, surface water quality may be outside of the limits established to
protect designated uses because of natural conditions. If this occurs during
periods when stream flows are below the flow that is used by the cabinet to
establish effluent limitations for wastewater treatment facilities, a
discharger shall not be considered a contributor to instream violations of
water quality standards, if treatment results in compliance with permit requirements.
(3)
Stream flows for water quality-based permits. The following stream flows shall
be utilized if deriving KPDES permit limitations to protect surface waters for
the listed uses and purposes:
(a)
Aquatic life protection shall be 7Q10;
(b)
Water-based recreation protection shall be 7Q10;
(c)
Domestic water supply protection shall be determined at points of withdrawal
as:
1.
The harmonic mean for cancer-linked substances; and
2.
7Q10 for noncancer-linked substances;
(d)
Human health protection regarding [from]fish consumption and for
changes in radionuclides shall be the harmonic mean; and
(e)
Protection of aesthetics shall be 7Q10.
Section
4. Aquatic Life. (1) Warm water aquatic habitat. The following parameters and
associated criteria shall apply for the protection of productive warm water
aquatic communities, fowl, animal wildlife, arboreous growth, agricultural, and
industrial uses:
(a)
Natural alkalinity as CaCO3 shall not be reduced by more than
twenty-five (25) percent.
1.
If natural alkalinity is below twenty (20) mg/L CaCO3, there shall
not be a reduction below the natural level.
2.
Alkalinity shall not be reduced or increased to a degree that may adversely
affect the aquatic community;
(b)
pH shall not be less than six and zero-tenths (6.0) nor more than nine and
zero-tenths (9.0) and shall not fluctuate more than one and zero-tenths (1.0)
pH unit over a period of twenty-four (24) hours;
(c)
Flow shall not be altered to a degree that will adversely affect the aquatic
community;
(d)
Temperature shall not exceed thirty-one and seven-tenths (31.7) degrees Celsius
(eighty-nine (89) degrees Fahrenheit).
1.
The normal daily and seasonal temperature fluctuations that existed before the
addition of heat due to other than natural causes shall be maintained.
2.
The cabinet may determine allowable surface water temperatures on a
site-specific basis utilizing available data that shall be based on the effects
of temperature on the aquatic biota that utilize specific surface waters of the
commonwealth and that may be affected by person-induced temperature changes.
a.
Effects on downstream uses shall also be considered in determining
site-specific temperatures.
b.
Values in the following table are guidelines for surface water temperature.
Month/Date
Period
Average
Instantaneous
Maximum
(°F)
(°C)
(°F)
(°C)
January
1-31
45
7
50
10
February
1-29
45
7
50
10
March
1-15
51
11
56
13
March
16-31
54
12
59
15
April
1-15
58
14
64
18
April
16-30
64
18
69
21
May
1-15
68
20
73
23
May
16-31
75
24
80
27
June
1-15
80
27
85
29
June
16-30
83
28
87
31
July
1-31
84
29
89
32
August
1-31
84
29
89
32
September
1-15
84
29
87
31
September
16-30
82
28
86
30
October
1-15
77
25
82
28
October
16-31
72
22
77
25
November
1-30
67
19
72
22
December
1-31
52
11
57
14
3.
A successful demonstration concerning thermal discharge limits carried out
pursuant to Section 316(a) of the Clean Water Act, 33 U.S.C. 1326, shall
constitute compliance with the temperature requirements of this subsection. A
successful demonstration assures the protection and propagation of a balanced
indigenous population of shellfish, fish, and wildlife in or on the water into
which the discharge is made;
(e)
Dissolved oxygen.
1.a.
Dissolved oxygen shall be maintained at a minimum concentration of five and
zero-tenths (5.0) mg/L as a twenty-four (24) hour average in water with WAH
use;
b.
The instantaneous minimum shall not be less than four and zero-tenths (4.0)
mg/L in water with WAH use.
2.
The dissolved oxygen concentration shall be measured at mid-depth in waters
having a total depth of ten (10) feet or less and at representative depths in
other waters;
(f)
Total dissolved solids or specific conductance. Total dissolved solids or
specific conductance shall not be changed to the extent that the indigenous
aquatic community is adversely affected;
(g)
Total suspended solids. Total suspended solids shall not be changed to the
extent that the indigenous aquatic community is adversely affected;
(h)
Settleable solids. The addition of settleable solids that may alter the stream
bottom so as to adversely affect productive aquatic communities shall be
prohibited;
(i)
Ammonia. The concentration of the un-ionized form shall not be greater than
0.05 mg/L at any time instream after mixing. Un-ionized ammonia shall be
determined from values for total ammonia-N, in mg/L, pH and temperature, by
means of the following equation:
Y
= 1.2 (Total ammonia-N)/(1 + 10pKa-pH)
pka
= 0.0902 + (2730/(273.2 + Tc))
Where:
Tc
= temperature, degrees Celsius.
Y
= un-ionized ammonia (mg/L);
(j)
Toxics.
1.
The allowable instream concentration of toxic substances, or whole effluents
containing toxic substances, which are noncumulative or nonpersistent with a
half-life of less than ninety-six (96) hours, shall not exceed:
a.
One-tenth (0.1) of the ninety-six (96) hour median lethal concentration (LC50)
of representative indigenous or indicator aquatic organisms; or
b.
A chronic toxicity unit of 1.00 utilizing the twenty-five (25) percent
inhibition concentration, or LC25.
2.
The allowable instream concentration of toxic substances, or whole effluents
containing toxic substances, which are bioaccumulative or persistent, including
pesticides, if not specified elsewhere in this section, shall not exceed:
a.
0.01 of the ninety-six (96) hour median lethal concentration (LC50)
of representative indigenous or indicator aquatic organisms; or
b.
A chronic toxicity unit of 1.00 utilizing the IC25.
3.
In the absence of acute criteria for pollutants listed in Table 1 of Section 6
of this administrative regulation, for other substances known to be toxic but
not listed in this administrative regulation, or for whole effluents that are
acutely toxic, the allowable instream concentration shall not exceed the LC1
or one-third (1/3) LC50 concentration derived from toxicity tests on
representative indigenous or indicator aquatic organisms or exceed three-tenths
(0.3) acute toxicity units.
4.
If specific application factors have been determined for a toxic substance or
whole effluent such as an acute to chronic ratio or water effect ratio, the
specific application factors[they] may be used instead of the
one-tenth (0.1) and 0.01 factors listed in this subsection upon demonstration
by the applicant that the application factors are scientifically defensible.
5.
Allowable instream concentrations for specific pollutants for the protection of
warm water aquatic habitat are listed in Table 1 of Section 6 of this
administrative regulation. These concentrations are based on protecting aquatic
life from acute and chronic toxicity and shall not be exceeded; and
(k)
Total residual chlorine. Instream concentrations for total residual chlorine
shall not exceed an acute criteria value of nineteen (19) mg/L or a chronic criteria value of eleven (11) mg/L.
(2)
Cold water aquatic habitat. The following parameters and criteria are for the
protection of productive cold water aquatic communities and streams that
support trout populations, whether self-sustaining or reproducing, on a
year-round basis. The criteria adopted for the protection of warm water aquatic
life also apply to the protection of cold water habitats with the following
additions:
(a)
Dissolved oxygen.
1.
A minimum concentration of six and zero-tenths (6.0) mg/L as a twenty-four (24)
hour average and five and zero-tenths (5.0) mg/L as an instantaneous minimum
shall be maintained.
2.
In lakes and reservoirs that support trout, the concentration of dissolved
oxygen in waters below the epilimnion shall be kept consistent with natural
water quality; and
(b)
Temperature. Water temperature shall not be increased through human activities
above the natural seasonal temperatures.
Section
5. Domestic Water Supply Use. Maximum allowable in-stream concentrations for
specific substances, to be applicable at the point of withdrawal, as
established in 401 KAR 10:026, Section 5(2)(b), Table B, for use for domestic
water supply from surface water sources are specified in Table 1 of Section 6
of this administrative regulation and shall not be exceeded.
Section
6. Pollutants. (1) Allowable instream concentrations of pollutants are listed as
water column values in Table 1 of this section unless otherwise
indicated.
Table
1
Pollutant
CAS1
Number
Water
Quality Criteria mg/L2
Human
Health:
Warm
Water Aquatic Habitat3:
DWS4
Fish5
Acute6
Chronic7
Acenaphthene
83329
670
990
-
-
Acrolein
107028
190
6
3
3
Acrylonitrile
107131
0.051
0.25
-
-
Aldrin
309002
0.000049
0.000050
3.0
-
alpha-BHC
319846
0.0026
0.0049
-
-
alpha-Endosulfan
959988
62
89
0.22
0.056
Anthracene
120127
8,300
40,000
-
-
Antimony
7440360
5.6
640
-
-
Arsenic
7440382
10.0
-
340
150
Asbestos
1332214
7
million fibers/L
-
-
-
Barium
7440393
1,000
-
-
-
Benzene
71432
2.2
51
-
-
Benzidine
92875
0.000086
0.00020
-
-
Benzo(a)anthracene
56553
0.0038
0.018
-
-
Benzo(a)pyrene
50328
0.0038
0.018
-
-
Benzo(b)fluoranthene
205992
0.0038
0.018
-
-
Benzo(k)fluoranthene
207089
0.0038
0.018
-
-
Beryllium
7440417
4
-
-
-
Beta-BHC
319857
0.0091
0.017
-
-
Beta-Endosulfan
33213659
62
89
0.22
0.056
bis(chloromethyl)ether
542881
0.00010
0.00029
-
-
bis(2-chloroethyl)ether
111444
0.030
0.53
-
-
bis(2-chloroisopropyl)ether
108601
1,400
65,000
-
-
bis(2-ethylhexyl)phthalate
117817
1.2
2.2
-
-
Bromoform
75252
4.3
140
-
-
Butylbenzyl
phthalate
85687
1,500
1,900
-
-
Cadmium
7440439
5
-
e(1.0166
(ln Hard*)-3.924)
e(0.7409
(ln Hard*)-
4.719)
Carbon
tetrachloride
56235
0.23
1.6
-
-
Chlordane
57749
0.00080
0.00081
2.4
0.0043
Chloride
16887006
250,000
-
1,200,000
600,000
Chlorobenzene
108907
130
1600
-
-
Chlorodibromomethane
124481
0.40
13
-
-
Chloroform
67663
5.7
470
-
-
Chloropyrifos
2921882
-
-
0.083
0.041
Chromium
N/A
100
-
-
-
Chromium
(III)
16065831
-
-
e(0.8190
(ln Hard*)+
3.7256)
e(0.8190
(ln Hard*)+
0.6848)
Chromium
(VI)
18540299
-
-
16
11
Chrysene
218019
0.0038
0.018
-
-
Color
N/A
75
Platinum Cobalt Units
-
-
-
Copper
7440508
1,300
-
e(0.9422
(ln Hard*)-
1.700)
e(0.8545
(ln Hard*)-
1.702)
Cyanide,
Free
57125
140
140
22
5.2
Demeton
8065483
-
-
-
0.1
Diazinon
333415
0.17
0.17
Dibenzo(a,h)anthracene
53703
0.0038
0.018
-
-
Dichlorobromomethane
75274
0.55
17
-
-
Dieldrin
60571
0.000052
0.000054
0.24
0.056
Diethyl
phthalate
84662
17,000
44,000
-
-
Dimethyl
phthalate
131113
270,000
1,100,000
-
-
Di-n-butyl
phthalate
84742
2,000
4,500
-
-
Dinitrophenols
25550587
69
5300
-
-
Endosulfan
sulfate
1031078
62
89
-
-
Endrin
72208
0.059
0.060
0.086
0.036
Endrin
aldehyde
7421934
0.29
0.30
-
-
Ethylbenzene
100414
530
2100
-
-
Fluoranthene
206440
130
140
-
-
Fluorene
86737
1,100
5,300
-
-
Fluoride
N/A
4,000
-
-
-
Guthion
86500
-
-
-
0.01
Heptachlor
76448
0.000079
0.000079
0.52
0.0038
Heptachlor
epoxide
1024573
0.000039
0.000039
0.52
0.0038
Hexachlorobenzene
118741
0.00028
0.00029
-
-
Hexachlorobutadiene
87683
0.44
18
-
-
Hexachlorocyclo-hexane-Technical
319868
0.0123
0.0414
-
-
Hexachlorocyclopentadiene
77474
40
1100
-
-
Hexachloroethane
67721
1.4
3.3
-
-
Ideno(1,2,3-cd)pyrene
193395
0.0038
0.018
-
-
Iron8
7439896
300
-
4,000
1,000
Isophorone
78591
35.0
960
-
-
Lead
7439921
15
-
e(1.273
(ln Hard*)-
1.460)
e(1.273
(ln Hard*)-
4.705)
Lindane
(gamma-BHC)
58899
0.98
1.8
0.95
Malathion
121755
-
-
-
0.1
Mercury
7439976
2.0
0.051
1.4
0.77
Methylmercury
22967926
0.3
mg/Kg
Methoxychlor
72435
100
-
-
0.03
Methylbromide
74839
47
1,500
-
-
Methylene
Chloride
75092
4.6
590
-
-
Mirex
2385855
-
-
-
0.001
Nickel
7440020
610
4,600
e(0.8460
(ln Hard*)+
2.255)
e(0.8460
(ln
Hard*)+
0.0584)
Nitrate
(as N)
14797558
10,000
-
-
-
Nitrobenzene
98953
17
690
-
-
Nitrosamines,
Other
N/A
0.0008
1.24
-
-
N-Nitrosodibutylamine
924163
0.0063
0.22
-
-
N-Nitrosodiethylamine
55185
0.0008
1.24
-
-
N-Nitrosodimethylamine
62759
0.00069
3.0
-
-
N-Nitrosodi-n-Propylamine
621647
0.0050
0.51
-
-
N-Nitrosodiphenylamine
86306
3.3
6.0
-
-
N-Nitrosopyrrolidine
930552
0.016
34
-
-
Nonylphenol
1044051
28
6.6
Parathion
56382
-
-
0.065
0.013
Pentachlorobenzene
608935
1.4
1.5
-
-
Pentachlorophenol
87865
0.27
3.0
e(1.005(pH)-4.869)
[19-][e(1.005
(pH)-4.869)]
e(1.005(pH)-5.134)
[15-][e(1.005
(pH)-5.134)]
Phenol
108952
21,000
860,000
-
-
Polychlorinated
Biphenyls (PCBs)
N/A
0.000064
0.000064
-
0.014
Pyrene
129000
830
4,000
-
-
Selenium
7782492
170
4,200
[2589]
5.09
8.610,
11
19.3
[10,]11, 12[12]
Silver
7440224
-
-
e(1.72
(ln Hard*)-6
.59)
-
Sulfate
N/A
250,000
-
-
-
Hydrogen
Sulfide, Undissociated
7783064
-
-
-
2.0
Tetrachloroethylene
127184
0.69
3.3
-
-
Thallium
7440280
0.24
0.47
-
-
Toluene
108883
1300
15,000
-
-
Total
Dissolved Solids
N/A
250,000
-
-
-
Toxaphene
8001352
0.00028
0.00028
0.73
0.0002
Tributyltin
(TBT)
0.46
0.072
Trichloroethylene
79016
2.5
30
-
-
Vinyl
Chloride
75014
0.025
2.4
-
-
Zinc
7440666
7,400
26,000
e(0.8473
(ln Hard*)+
0.884)
e(0.8473
(ln Hard*)+
0.884)
1,1-dichloroethylene
75354
330
7100
-
-
1,1,1-trichloroethane
71556
200
-
-
-
1,1,2-trichloroethane
79005
0.59
16
-
-
1,1,2,2-tetrachloroethane
79345
0.17
4.0
-
-
1,2-dichlorobenzene
95501
420
1300
-
-
1,2-dichloroethane
107062
0.38
37
-
-
1,2-dichloropropane
78875
0.50
15
-
-
1,2-diphenylhydrazine
122667
0.036
0.20
-
-
1,2-trans-dichloroethylene
156605
140
10,000
-
-
1,2,4-trichlorobenzene
120821
35
70
-
-
1,2,4,5-tetrachlorobenzene
95943
0.97
1.1
-
-
1,3-dichlorobenzene
541731
320
960
-
-
1,3-dichloropropene
542756
0.34
21
-
-
1,4-dichlorobenzene
106467
63
190
-
-
2-chloronaphthalene
91587
1,000
1,600
-
-
2-chlorophenol
95578
81
150
-
-
2-methyl-4,6-dinitrophenol
534521
13
280
-
-
2,3,7,8-TCDD
(Dioxin)
1746016
5.0
E - 9
5.1
E - 9
-
-
2,4-D
94757
100
-
-
-
2,4-dichlorophenol
120832
77
290
-
-
2,4-dimethylphenol
105679
380
850
-
-
2,4-dinitrophenol
51285
69
5,300
-
-
2,4-dinitrotoluene
121142
0.11
3.4
-
-
2,4,5-TP
(Silvex)
93721
10
-
-
-
2,4,5-trichlorophenol
95954
1,800
3,600
-
-
2,4,6-trichlorophenol
88062
1.4
2.4
-
-
3,3’-dichlorobenzidine
91941
0.021
0.028
-
-
4,4’-DDD
72548
0.00031
0.00031
-
-
4,4’-DDE
72559
0.00022
0.00022
-
-
4,4’-DDT
50293
0.00022
0.00022
1.1
0.001
1CAS = Chemical Abstracts
Service.
2Water quality criteria
in mg/L unless reported in
different units.
3Metal concentrations
shall be total recoverable metals to be measured in an unfiltered sample,
unless it can be demonstrated that a more appropriate analytical technique is
available that provides a measurement of that portion of the metal present
which causes toxicity to aquatic life.
4DWS = Domestic Water
Supply Source.
5Fish = protecting
human health regarding fish consumption.
6Acute criteria =
protective of aquatic life based on one (1) hour exposure that does not exceed
the criterion for a given pollutant.
7Chronic = protective of
aquatic life based on ninety-six (96) hour exposure that does not exceed the
criterion of a given pollutant more than once every three (3) years on the
average.
8The chronic criterion
for iron shall not exceed three and five tenths (3.5) mg/L (thirty-five hundred
mg/L) if aquatic life has
not been shown to be adversely affected.
9 If fish tissue data
are available, fish tissue data shall take precedence over water column data[the
concentration of sulfate is less than forty-four (44) mg/L, the alternate acute
water quality standard for selenium may be obtained by calculating the
Criterion Maximum Concentration (CMC) using the concentrations of selenite and
selenate as follows:
CMC
= 1/, where CMC1 is 258 mg/L
for selenite and CMC2 is e(0.5812 + 3.357)m g/L for selenate, and
f1 is the fraction of total selenium that is selenite and f2 is the fraction of
total selenium that is selenate].
10This value is the
concentration in mg/g (dry weight) of
whole fish tissue.]
11
A
concentration of five and zero tenths (5.0) mg/L
or greater selenium in the water column shall trigger further sampling and
analysis of whole-body fish tissue or alternately of fish egg/ovary tissue.
12This value is the concentration in mg/g (dry weight) of fish
egg/ovary tissue.
[12This value is the concentration in mg/g (dry weight) of fish
egg/ovary tissue.]
*Hard
= Hardness as mg/L CaCO3.
(2)
The following additional criteria for radionuclides shall apply for Domestic
Water Supply use:
(a)
The gross total alpha particle activity, including radium-226 but excluding
radon and uranium, shall not exceed fifteen (15) pCi/L;
(b)
Combined radium-226 and radium-228 shall not exceed five (5) pCi/L. Specific
determinations of radium-226 and radium-228 are not necessary if dissolved
gross alpha particle activity does not exceed five (5) pCi/L;
(c)
The concentration of total gross beta particle activity shall not exceed fifty
(50) pCi/L;
(d)
The concentration of tritium shall not exceed 20,000 pCi/l;
(e)
The concentration of total Strontium-90 shall not exceed eight (8) pCi/L; and[or]
(f)
The concentration of uranium shall not exceed thirty (30) mg/l.
Section
7. Recreational Waters. (1) Primary contact recreation water. The following
criteria shall apply to waters designated as primary contact recreation use
during the primary contact recreation season of May 1 through October 31:
(a)
Fecal coliform content or Escherichia coli content shall not exceed 200
colonies per 100 ml or 130 colonies per 100 ml respectively as a geometric mean
based on not less than five (5) samples taken during a thirty (30) day period.
Content also shall not exceed 400 colonies per 100 ml in twenty (20) percent or
more of all samples taken during a thirty (30) day period for fecal coliform or
240 colonies per 100 ml for Escherichia coli. Fecal coliform criteria listed in
subsection (2)(a) of this section shall apply during the remainder of the
year;[and]
(b)
pH shall be between six and zero-tenths (6.0) to nine and zero-tenths (9.0) and
shall not change more than one and zero-tenths (1.0) pH unit within this range
over a period of twenty-four (24) hours; and[.]
(c)
Fecal coliform content criteria listed in paragraph (a) of this subsection
shall no longer apply beginning November 1, 2019.
(2)
Secondary contact recreation water. The following criteria shall apply to
waters designated for secondary contact recreation use during the entire year:
(a)
Fecal coliform content shall not exceed 1,000 colonies per 100 ml as a thirty
(30) day geometric mean based on not less than five (5) samples; nor exceed
2,000 colonies per 100 ml in twenty (20) percent or more of all samples taken
during a thirty (30) day period; and
(b)
pH shall be between six and zero-tenths (6.0) to nine and zero-tenths (9.0) and
shall not change more than one and zero-tenths (1.0) pH unit within this range
over a period of twenty-four (24) hours.
Section
8. Outstanding State Resource Waters. This designation category includes
certain unique waters of the commonwealth. (1) Water for inclusion.
(a)
Automatic inclusion. The following surface waters shall automatically be included
in this category:
1.
Waters designated pursuant to the Kentucky Wild Rivers Act, KRS
146.200-146.360;
2.
Waters designated pursuant to the Federal Wild and Scenic Rivers Act, 16 U.S.C.
1271-1287;
3.
Waters that support federally recognized endangered or threatened species
pursuant to the Endangered Species Act of 1973, as amended, 16 U.S.C.
1531-1544.
(b)
Permissible consideration. Other surface waters shall be considered for
inclusion in this category if:
1.
The surface waters flow through or are bounded by state or federal forest land,
or are of exceptional aesthetic or ecological value or are within the
boundaries of national, state, or local government parks, or are a part of a
unique geological, natural, or historical area recognized by state or federal
designation; or
2.
The surface water is a component part of an undisturbed or relatively
undisturbed watershed that can provide basic scientific data and possess
outstanding water quality characteristics, or fulfill two (2) of the following
criteria:
a.
Support a diverse or unique native aquatic flora or fauna;
b.
Possess physical or chemical characteristics that provide an unusual and
uncommon aquatic habitat; or
c.
Provide a unique aquatic environment within a physiographic region.
(2)
Outstanding state resource waters protection. The designation of certain waters
as outstanding state resource waters shall fairly and fully reflect those
aspects of the waters for which the designation is proposed. The cabinet shall
determine water quality criteria for these waters as established in
paragraphs (a) through (d) of this section.[follows:]
(a)
At a minimum, the criteria of Section 2 and Table 1 of Section 6 of this
administrative regulation and the appropriate criteria associated with the
stream use designation assignments in 401 KAR 10:026, shall be applicable to
these waters.
(b)
Outstanding state resource waters that are listed as Exceptional Waters in 401
KAR 10:030, Section 1(2) shall have dissolved oxygen maintained at a minimum
concentration of six and zero-tenths (6.0) mg/L as a twenty-four (24) hour
average and an instantaneous minimum concentration of not less than five and
zero-tenths (5.0) mg/L.
(c)1.
If the values identified for an outstanding state resource water are dependent
upon or related to instream water quality, the cabinet shall review existing
water quality criteria and determine if additional criteria or more stringent
criteria are necessary for protection, and evaluate the need for the
development of additional data upon which to base the determination.
2.
Existing water quality and habitat shall be maintained and protected in those
waters designated as outstanding state resource waters that support federally
threatened and endangered species of aquatic organisms, unless it can be
demonstrated that lowering of water quality or a habitat modification will not
have a harmful effect on the threatened or endangered species that the water
supports.
(d)
Adoption of more protective criteria in accordance with this section shall be
listed with the respective stream segment in 401 KAR 10:026.
(3)
Determination of designation.
(a)
A person may present a proposal to designate certain waters pursuant to this
section. Documentation requirements in support of an outstanding state resource
water proposal shall contain those elements outlined in 401 KAR 10:026, Section
3(3)(a) through (h).
(b)1.
The cabinet shall review the proposal and supporting documentation to determine
if the proposed waters qualify as outstanding state resource waters within the
criteria established by this administrative regulation.
2.
The cabinet shall document the determination to deny or to propose
redesignation, and a copy of the decision shall be served upon the petitioner
and other interested parties.
(c)
After considering all of the pertinent data, a redesignation, if appropriate,
shall be made pursuant to 401 KAR 10:026.
Section
9. Water Quality Criteria for the Main Stem of the Ohio River. (1) The
following criteria apply to the main stem of the Ohio River from its juncture
with the Big Sandy River at River Mile 317.1 to its confluence with the
Mississippi River, and shall not be exceeded.
(2)
These waters shall be subject to all applicable provisions of 401 KAR 10:001,
10:026, 10:029, 10:030, and this administrative regulation, except for those
criteria in paragraphs (a) and (b) of this subsection.
(a)
Dissolved oxygen. Instream concentrations shall average at least five and
zero-tenths (5.0) mg/L per calendar day and shall not be less than four and zero-tenths
(4.0) mg/L except during the April 15 - June 15 spawning season when a minimum
of five and one-tenth (5.1) mg/L shall be maintained.
(b)
Maximum allowable instream concentrations for nitrite-nitrogen for the
protection of human health shall be one and zero-tenths (1.0) mg/L and shall be
met at the edge of the assigned mixing zone.
Section
10. Exceptions to Criteria for Specific Surface Waters. (1) The cabinet may
grant exceptions to the criteria contained in Sections 2, 4, 6, 7, 8, and 9 of
this administrative regulation for specific surface water upon demonstration by
an applicant that maintenance of applicable water quality criteria is not
attainable or scientifically valid but the use designation is still
appropriate.
(2)
The analysis shall show that the water quality criteria cannot be reasonably
achieved, either on a seasonal or year-round basis due to natural conditions or
site-specific factors differing from the conditions used to derive criteria in
Sections 2, 4, 6, 7, 8, and 9 of this administrative regulation.
(a)
Site-specific criteria shall be developed by the applicant utilizing toxicity
tests, indicator organisms, and application factors that shall be consistent
with those outlined in Chapter 3 of Water Quality Standards Handbook, EPA,
1994.
(b)
In addition, an applicant shall supply the documentation listed in 401 KAR
10:026, Section 3.
(3)
An exception to criteria listed in Table 1 of Section 6 of this administrative
regulation for the protection of human health from the consumption of fish
tissue may be granted if it is demonstrated that natural, ephemeral,
intermittent, or low flow conditions or water levels preclude the year-round
support of a fishery, unless these conditions may be compensated for by the
discharge of sufficient volume of effluent discharges.
(4)
Before granting an exception to water quality criteria, the cabinet shall
ensure that the water quality standards of downstream waters shall be attained
and maintained.
(5)
All exceptions to water quality criteria shall be subject to review at least
every three (3) years.
(6)
Exceptions to water quality criteria shall be adopted as an administrative
regulation by listing them with the respective surface water in 401 KAR 10:026.
Section
11. Exceptions to Criteria for Individual Dischargers. (1) An exception to
criteria may be granted to an individual discharger based on a demonstration by
the discharger, that KPDES permit compliance with existing instream criteria
cannot be attained because of factors specified in 401 KAR 10:026, Section
2(4)(a) through (f).
(2)
The demonstration shall include an assessment of alternative pollution control
strategies and biological assessments that indicated designated uses are being
met.
(3)
Before granting an exception, the cabinet shall ensure that the water quality
standards of downstream waters shall be attained and maintained.
(4)
All exceptions shall be submitted to the cabinet for review at least every
three (3) years. Upon review, the discharger shall demonstrate to the cabinet
the effort the discharger made to reduce the pollutants in the discharge to
levels that would achieve existing applicable water quality criteria.
(5)
The highest level of effluent quality that can be economically and
technologically achieved shall be ensured while the exception is in effect.
(6)
The Kentucky Pollution Discharge Elimination System permitting program shall be
the mechanism for the review and public notification of intentions to grant
exceptions to criteria.
Section
12. Incorporation by Reference. (1) The following material is incorporated by
reference:
(a)
"Water Quality Standards Handbook-Chapter 3", EPA August 1994,
Publication EPA-823-B-94-005a, U.S. Environmental Protection Agency, Office of
Water, Washington, D.C.; and
(b)
"Interim Economic Guidance for Water Quality Standards Workbook", EPA
March 1995, Publication EPA-823-B-95-002, U.S. Environmental Protection Agency,
Office of Water, Washington, D.C.
(2)
This material may be inspected, copied, or obtained, subject to applicable
copyright law, at the Division of Water, 200 Fair Oaks Lane, Frankfort,
Kentucky, Monday through Friday, 8 a.m. to 4:30 p.m.
LEONARD
K. PETERS, Secretary
APPROVED
BY AGENCY: November 10, 2015
FILED
WITH LRC: November 12, 2015 at 10 a.m.
CONTACT
PERSON: Carole J. Catalfo, Internal Policy Analyst, RPPS, Division of Water,
200 Fair Oaks Lane, 4th Floor, Frankfort, Kentucky 40601, phone (502) 564-3410,
fax (502) 564-9003.
REGULATORY IMPACT ANALYSIS AND TIERING STATEMENT
Contact
Person: Peter Goodmann
(1)
Provide a brief summary of:
(a)
What this administrative regulation does: This administrative regulation
establishes water quality standards for surface waters of the Commonwealth and
the associated water quality criteria necessary to protect designated uses.
(b)
The necessity of this administrative regulation: This administrative regulation is necessary for the protection
of public health, aquatic habitat, and designated uses of the surface waters of
the Commonwealth.
(c)
How this
administrative regulation conforms to the content of the authorizing statutes: KRS
224.10-100 requires the Cabinet to develop and conduct a comprehensive program
for the management of water resources and the prevention, abatement, and
control of water pollution. This administrative regulation and 401 KAR 10:001,
10:026, 10:029, and 10:030 establish procedures to protect the surface waters
of the Commonwealth, and thus manage water resources and prevent water
pollution. This administrative regulation describes the criteria applied in 401
KAR 10:026 to the surface waters of the Commonwealth and establishes water
quality standards that consist of designated legitimate uses of the surface
waters of the Commonwealth and the associated water quality criteria necessary
to protect those uses.
(d)
How this administrative regulation currently assists or will assist in the
effective administration of the statutes: This administrative regulation
assists in the administration of the statutes by providing specific criteria
and water quality standards for the protection of surface waters of the
Commonwealth as required by the authorizing statutes.
(2)
If this is an amendment to an existing administrative regulation, provide a
brief summary of:
(a)
How the amendment will change this existing administrative regulation: The amendments after comments
reinsert the appropriate Pentachlorophenol values in the Warm Water Aquatic
Habitat Acute and Chronic columns, and reinsert Selenium footnote 12 to
distinguish the mg/g (dry weight) of fish
egg/ovary tissue.
(b)
The necessity of the amendment to this administrative regulation: The
amendments after comments are necessary corrections to reflect accurate
measurements of pentachlorophenol and selenium for protection of human health
and aquatic habitat.
(c)
How the amendment conforms to the content of the authorizing statutes: KRS
224.10-100 requires the Cabinet to develop and conduct a comprehensive program
to manage water resources and provide for the prevention, abatement, and
control of water pollution. This amendment updates water quality criteria for
selenium and pentachlorophenol to protect designated uses of the surface waters
of the Commonwealth.
(d)
How the amendment will assist in the effective administration of the statutes: This
amendment will assist in the administration of the statutes by providing clear
and current criteria and water quality standards for the protection of surface
waters of the Commonwealth in accordance with the authorizing statutes.
(3)
List the type and number of individuals, businesses, organizations, or state
and local governments affected by this administrative regulation: This
administrative regulation applies to the surface waters of the Commonwealth. All
individuals, businesses, organizations, and governments that use the
Commonwealth’s surface waters may be impacted by this regulation if they apply
for a new or expanded discharge permit.
(4)
Provide an analysis of how the entities identified in question (3) will be
impacted by either the implementation of this administrative regulation, if
new, or by the change, if it is an amendment, including:
(a)
List the actions that each of the regulated entities identified in question (3)
will have to take to comply with this administrative regulation or amendment: The
substantive requirements of the administrative regulation remain unchanged by
the amendments after comments. The revised water quality criteria will be
implemented when the cabinet issues a new or expanded permit. Additional costs
may be incurred when criteria are more stringent than before, or when new
criteria are established. Fewer costs will be incurred when criteria have been
lowered.
(b)
In complying with this administrative regulation or amendment, how much will it
cost each of the entities identified in question (3): The amendments after
comments will not have further impact on costs. The costs to comply with this
administrative regulation will vary considerably depending on the site
location, type of activity, and other factors. Therefore, it is not possible to
quantify costs to implement this regulation.
(c)
As a result of compliance, what benefits will accrue to the entities identified
in question (3): Fewer costs may be incurred when criteria are less stringent. Direct
and indirect savings will be realized through reduced drinking water treatment
costs, maintenance of good agricultural water, maintenance of fisheries, and
healthy recreational waters.
(5)
Provide an estimate of how much it will cost the administrative body to
implement this administrative regulation:
(a)
Initially: There are no additional initial costs to implement this
administrative regulation.
(b)
On a continuing basis: Costs of implementation will remain the same.
(6)
What is the source of the funding to be used for the implementation and
enforcement of this administrative regulation? The source of revenue is a
combination of General Funds appropriated by the Kentucky General Assembly and
federal funds from the U.S. Environmental Protection Agency.
(7)
Provide an assessment of whether an increase in fees or funding will be
necessary to
implement
this administrative regulation, if new, or by the change if it is an amendment:
An
increase
in fees will not be necessary to implement this amendment.
(8)
State whether or not this administrative regulation established any fees or
directly or
indirectly
increased any fees: This administrative regulation does not establish fees or
directly
or
indirectly increase fees.
(9)
TIERING: Is tiering applied? Yes, tiering is applied in this administrative
regulation. Water quality standards and associated
criteria
vary based on the designated use of the surface water.
FISCAL NOTE ON STATE OR LOCAL GOVERNMENT
1.
What units, parts or divisions of state or local government (including cities,
counties, fire departments, or school districts) will be impacted by this
administrative regulation? This administrative regulation will affect the
wastewater treatment operations of local government if they have new or
expanded discharges into surface waters of the Commonwealth.
2.
Identify each state or federal statute or federal regulation that requires or
authorizes the action taken by the administrative regulation: KRS 146.220,
146.241, 146.270, 146.410, 146.450, 146.460, 146.465, 224.10-100, 224.16-050,
224.16-060, 224.70-100, 224.70-110, 40
C.F.R. Part 131, 16 U.S.C. 1271-1287, 1531-1544, 33 U.S.C. 1311, 1313, 1314,
and 1341.
3.
Estimate the effect of this administrative regulation on the expenditures and
revenues of a state or local government agency (including cities, counties,
fire departments, or school districts) for the first full year the
administrative regulation is to be in effect.
(a)
How much revenue will this administrative regulation generate for the state or
local government (including cities, counties, fire departments, or school
districts) for the first year? This administrative regulation will not generate
any revenue.
(b)
How much revenue will this administrative regulation generate for the state or
local government (including cities, counties, fire departments, or school
districts) for subsequent years? This administrative regulation will not
generate any revenue.
(c)
How much will it cost to administer this program for the first year? The amendment to this administrative
regulation will not increase administration costs.
(d)
How much will it cost to administer this program for subsequent years? The
amendment to this administrative regulation will not increase administration
costs.
Note:
If specific dollar estimates cannot be determined, provide a brief narrative to
explain the fiscal impact of the administrative regulation.
Revenues
(+/-):
Expenditures
(+/-):
Other
Explanation: Wastewater treatment costs may increase for those local
governments that have new or expanded discharges into Exceptional Waters and
High Quality Waters. Local governments withdrawing drinking water from these
waters may have lower treatment costs because these waters should have lower
pollutant loads.
FEDERAL MANDATE ANALYSIS COMPARISON
1.
Federal statute or regulation constituting the federal mandate: There is no
federal mandate to implement a water pollution control program. For Kentucky to
maintain its delegation authority over the NPDES permit program, the Clean
Water Act requires that Kentucky review its water quality standards every three
years (known as the "Triennial Review") and comply with the
programmatic requirements of 40 C.F.R. Part 131, including the requirement for
reviewing water quality criteria for appropriate revisions.
2.
State compliance standards: KRS 146.220, 146.241, 146.270, 146.410, 146.450,
146.460, 146.465, 224.10-100, 224.16-050, 224.16-060, 224.70-100, and
224.70-110.
3.
Minimum or uniform standards contained in the federal mandate: 40 C.F.R. Part
131, 16 U.S.C. 1271-1287, 1531-1544, 33 U.S.C. 1311, 1313, 1314, and 1341.
4.
Will this administrative regulation impose stricter requirements, or additional
or different responsibilities or requirements than those required by the
federal mandate? No.
5.
Justification for the imposition of the stricter standard, or additional or
different responsibilities or requirements: There are no stricter standards or
additional or different responsibilities or requirements.