401 KAR 10:031. Surface water standards

Link to law: http://www.lrc.ky.gov/kar/401/010/031reg.htm
Published: 2015

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.
Read Entire Law on www.lrc.ky.gov