Division of Water Proposes Last Minute Changes In Selenium Water Quality Limits  

Posted: February 11, 2013 

Senator Joe Bowens, Co-Chair
Representative Johnny Bell, Co-Chair
Administrative Regulations Review Subcommittee

All Members
Administrative Regulations Review Subcommittee

Re: 401 KAR 10:031

Dear Chairmen Bowen and Bell, and Committee Members:

I'm writing to express the grave concerns of the Kentucky Resources Council, Inc. over the February 5, 2013 request of the Kentucky Department for Environmental Protection, Division of Water, to amend 401 KAR 10:031 before your Subcommittee in order to incorporate acute and chronic standards for selenium that were neither publicly noticed nor subject to an opportunity for comment in accordance with KRC Chapter 13A.

Others will comment on the many technical concerns raised in this 11th-hour proposal by the Cabinet to dramatically change the current water quality limits for selenium. I note briefly that this is only the second time in memory, dating back at least to the 1980s, where the Division of Water has developed a water quality limit rather than adopting a limit that has been subject to objective scientific peer review, and yet there has been no opportunity for public review and comment on the proposed new limit and methodology.

KRS Chapter 13A is designed to assure that an agency regulation (whether new, amended, or repealed) is subject to public notice and comment. The agency request plainly violates both the letter and spirit of KRS Chapter 13A and deprives the public of due process, in violation of Kentucky Constitution Section 2, which prohibits arbitrary government action.

The agency, by letter dated February 5, 2013, has asked this Subcommittee to modify the final rule that has been published as amended after hearing, in order to incorporate a new acute and chronic selenium water quality standard, when the proposed rule proposed only to delete the acute standard and gave no notice of an intent to change the chronic standard in any manner. The proposal to incorporate new acute and chronic numbers, and to modify the existing chronic standard in order to make it only a “screening” standard, departs significantly from the proposed rule. The proposal by the agency to modify 401 KAR 10:031 in order to incorporate these new standards was not fairly noticed in the proposed rule, and as such, the request is flatly violative of KRS Chapter 13A in several respects.

The General Assembly has provided only one mechanism for incorporation of amendments to existing regulations without public notice and comment. If there were an “emergency” situation, as contemplated by KRS 13A.190, the General Assembly has provided a process for filing of regulations that would take effect prior to notice and comment, and has bounded those circumstances in order to prevent agency abuse. Underlying this and other provisions of KRS Chapter 13A is a legislative commitment to the regulated community and to the public at large that notice-and-comment agency rulemaking will be the norm, with emergency regulation adoption the strictly bounded exception.

The agency proposal, coming a mere six (6) days before this Subcommittee is to hear this regulation, to incorporate two significant changes to the regulation that were not fairly noticed and have undergone no public scrutiny, makes a mockery of the transparency that KRS Chapter 13A seeks to provide. There has been no showing of an emergency as would authorize this abridgment of public notice and comment, yet the effect of this 11th-hour change is to prevent any timely and meaningful opportunity to review and comment on a significant and complex scientific issue relating to acute and chronic exposure of aquatic life to selenium and the standards necessary to prevent adverse physiological response in aquatic life to this bioaccumulative toxin.

The proposed incorporation of these new standards into a regulation that had already undergone public notice and comment, and for which the final rule had been published, violates a number of requirements of KRS Chapter 13A, in addition to constituting “arbitrary” governmental action in derogation of Kentucky Constitution Section 2. Among the requirements that have not been complied with in this last-minute, significant change in the final rule, are:

• The lack of a regulatory impact analysis of the proposed adoption of new acute and chronic selenium standards that would provide every person who has requested notice of regulatory amendments, an analysis “completed in detail sufficient to put the individual on notice as to the specific contents of the administrative regulation, including all proposed amendments to the administrative regulation.”

• The lack of federal mandate analysis for the change;

* The lack of consideration of costs to the government, which is replacing a “water column” water quality limitation, compliance with which can be determined at a fraction of the costs of conducting a fish tissue analysis in order to determine compliance,

• The failure to provide advance notice of the intended changes to the regulation so that the public hearing would be conducted so “as to guarantee each person who wishes to offer comment a fair and reasonable opportunity to do so[.]”

Obviously, a substantive change to water quality limits that has not been included in the published proposed regulation amendment, and has not been specifically described so as to put the individual on notice, deprives that person of the guarantee of a fair and reasonable opportunity to comment on the proposed amendment.

This last-minute attempt to effect a significant weakening of the selenium water quality limits is in plain violation of KRS Chapter 13A. The agency has not complied with the provisions of KRS Chapter 13A in the manner outlined above, and moreover, by virtue of requesting that this Subcommittee incorporate these changes as amendments to a regulation when no notice has been of the intent to promulgate a new acute selenium criterion or to adopt an entirely new methodology for establishing a chronic criterion given and no compliance with these publication requirements has been achieved, the agency could be deemed, as a matter of law, to have “failed to comply with the provisions of [Chapter 13A] governing the filing of administrative regulations, the public hearing, and public comment period, [and] statement of consideration[.]” The effect of these multiple failures is that the administrative regulation is deemed to have expired “and shall not be reviewed by a legislative subcommittee” pursuant to KRS 13A.315(1)(c).

In order to protect the integrity of the Chapter 13A process and to assure that procedural due process rights for those whose interests in the use and enjoyment of Kentucky’s waterways are protected, the Council respectfully requests that you decline to consider the February 5, 2013 request.

Cordially,

/s/

Tom FitzGerald
Director