August 30, 2010

Thomas J. Gardner Office of Science and Technology (Mail Code 4305T)

Office of Water U.S. Environmental Protection Agency 1200 Pennsylvania Ave, NW Washington, DC 20460

Re: WQS Regulatory Chan ge Considerations

Dear Mr. Gardner:

The Kansas Department of Health and Envi ronment (KDHE) apprecia tes the opportunity to comment on the water quality regulatory changes EPA is considering. Our comments on the individual proposed changes follow:

1. Antidegradation Implementation Measures - We generally do not support requiring antidegradation implementation requirements bei ng adopted in state water quality standards (WQS). States have a variet y of ways of providing implemen tation instruction to regulated

entities in their re spective states – continuous pl anning process documents, NPDES regulations, stand alone guidance documents, etc. Requiring thos e procedures to be adopted as WQS may completely change how implementa tion would be handled. For instance, most states have to adopt WQS into state regulations. That proc ess alone can be time consuming

and contentious.

As state regulation, there would generally be less flexibility in wording and application of the procedures. In Kansas, regulations have to be written in a very specific format with very specific legalistic language. Th e Kansas regulations do not a llow for the use of the words “may” and “could”, but rather “must” and “shall ”. Our Attorney General believes regulation should only contain those items an entity “m ust” do, otherwise it does not belong in regulation. We see antidegradation implementati on as being more in the vein of guidance, not mandatory regulation. However, since Kans as WQS have to be adopted in regulation, antidegradation implementation would have to be adopted into regulation if the proposed change is promulgated.

Second, EPA is only talking about identifyi ng the minimum elements without guidance on how the elements might be addressed. If there is a regulation change mandating antidegradation implementation be included in state WQS, lack of guidance or bounds on what regional offices can demand of states will undoubtedly lead to une ven application of the antidegradation rule.

CURTIS STATE OFFICE BUILDING, 1000 SW JACKSON ST., STE. 420, TOPEKA, KS 66612-1367

Voice 785-296-5504 Fax 785-296-0086Letter to Thomas J. Gardner August 30, 2010 Page 2 of 4

Lastly, EPA has previously stated that antide gradation has not been implemented well across the country. Thus, many states will be ente ring a new arena when initially implementing antidegradation policies. It is unlikely states or EPA will craft the perfect implementation

rules the first time around and will run into roadblocks and other impediments upon initial implementation. Therefore, if antidegradation implementation is to ultimately be locked into regulation, states should have the opportunity to “test drive” implementation and adapt policies as necessary prior to maki ng the mandatory leap to regulation.

2. Administrator’s Determination – It does not seem proper that EPA is writing a selfdirecting regulation – directing itself on how to express an Administrator’s determination. If this is to be in regulation, it should only be as a definition. It would seem far easier for EPA to simply include a statement in their letters dealing with WQS stating the letters are or are

not a determination. That should be Agency policy and not regulation.

3. Designated Uses - EPA needs to clearly think through the issue of “highest attainable use”. The proposal seems to assume states have tier s or subsets within each of their broad use categories. That is not always the case. Fo r instance, many states have a singular recreation use. If that use is removed via UAA, there is no “next highest” recreation use. Similarly, states with only warm water fisheries may onl y have a singular aquatic life use. If EPA’s concept is that states would de velop subsets of all uses so a “next highest use” will be available, that is time and labor intensive and a largely hidden cost imbedded in the proposal.

4. Variances – EPA needs to be more specific in what it means by this proposal. If it is a general statement that variances have to go through a public process, we have no problem with that specific concept. However, if EPA proposes to delve into more detail regarding what can and cannot be considered a variance, singular methods for adopting variances, etc., we have concern. Locking in too much detail in regulation always pr ecludes the use of new and innovative approaches that were not consid ered when the regulation was developed.

For instance, one of the more interesting variance concepts we have heard about (from Tim Conner with EPA) is variance by statute that is being considered in Montana. As we understand, variance provisions would be included in state statute to provide variances to small communities unable to afford treatment process to meet strict NPDES nutrient limits. This type of streamlined variance process, as opposed to a facility-by-facility variance, will be a must as EPA moves down the path of adopting criteria so stringent that small dischargers will not be able to afford treatment to meet WQBELs based on the criteria – specifically ammonia and nutrients.

Additionally, we have heard some at EPA Re gion 7 state that va riances for individual facilities must be adopted as water quality standards changes. Again, this will be a crushing task if and when the proposed ammonia criteria and expected nut rient criteria ar e applied to the permits of small dischargers. These types of situations call for a streamlined process. Therefore, we request any vari ance regulation maintain sufficient flexibility to allow for innovative, streamlined variance processes.Letter to Thomas J. Gardner August 30, 2010 Page 3 of 4

5. Triennial Reviews – We question EPA’s authority to ma ke either of the proposed regulation changes – mandatory solicitation of input on sc ope and mandatory evaluation of any and all standards against any information that has beco me available. Section 303 (c)(1) of the Clean Water Act requires the Governor of a state or the state water pollution control agency to hold

triennial reviews and the results made available to EPA. There is no provision directing EPA

to establish the framework for a state triennial review. Neither is there a provision for EPA to perform the review in lieu of the state even if the state doe s not perform the review. The Act is clearly speaking to the st ates, and it neither dictates how states perform the review, nor

the content of the review. Th erefore, it is inappropriate fo r EPA to dictate how a state

undertakes the triennial review via a federal regulation.

The Clean Water Act clearly sets out water qual ity standards and the pe riodic review of those

standards as state functions. The Act gives EPA authority to approve or disapprove standards the states develop, but it does not give EPA approval of the Triennial Review process. In Kansas, we have always viewed the Triennial Re view as a conversation between state government and the citizens it serves. Ba sed on that conversation, KDHE can choose to change standards. Any changes go through a formal rule making process and ultimate submission to EPA. EPA has the authority to either approve or disapprove the proposed standards, however we do not believe EPA has th e authority to mandate how a state arrives at the decision to change a standard.

6. Updates To Reflect Court Decisions

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A. Definition of Water Quality Standard – it is difficult to comment on this proposal without knowing what EPA currently considers a wate r quality standard. There needs to be significant discussion on what EPA believe s is a water quality standard and the ramifications of making that determin ation. For instance, if EPA defines “implementation documents” as water quality st andards, it usurps the issue discussed in the first item regarding wh ether antidegradation implement ation should specifically be considered a mandatory water quality standard.

B. Authorization of Compliance Schedules – As long as the change onl y clarifies that water quality standards must contain a provision a llowing for the use of compliance schedules, we have no concern. If the change begins to go into more detail as to what a schedule should look like, we would have to see the specific la nguage or be given some idea as to

the nature of the additional ch anges in order to comment.

C. States Must Submit Public Participa tion Records – We typically submit our r esponse to

comment documents to EPA. We believe that is sufficient. We do not believe EPA needs every comment letter, re gulation hearing transcript, publ ic meeting transcript, etc. Nor do we believe EPA has the authority to a pprove or disapprove a state’s response. Regardless, we question what EPA is proposing to do with the information received. We do not believe EPA should be making value judgments on the perceived quality orLetter to Thomas J. Gardner August 30, 2010 Page 4 of 4

quantity of public participation, since public participation is primarily driven by state statutory and regulat ory requirements.

As a final overall comment, we believe EPA should estimate the costs of any proposed regulatory changes. Resources for implementati on of the proposed change s are not addressed in any of the documents EPA has provided. We are concerned that EPA is obligating states to significantly more workload without additi onal resources. The O ffice of Science and Technology needs to work with other Office of Water (OW) staff and ECOS in their current effort to update the “Baby Gap” model which ad dresses the resources required for states to manage Clean Water Act program workload. Previ ous efforts have shown that states have about half of the staff needed to implement those pr ograms. The new demands on state resources that would be brought about by these changes, as well as other demands from OW and the Office of Compliance and Enforcement Assurance (OECA) would significantly exa cerbate the resource

gap.

Please contact me if you have quest ions concerning these comments.

Sincerely,

Michael B. Tate, Chief

Technical Services Section mtate@kdheks.gov

C - Karl Mueldener, KDHE Tom Stiles, KDHE Yan Wang, KDHE Sean Roland, ASIWPCA