Selenium Amended Complaint-1

8/12/2019 Selenium Amended Complaint-1

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UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF KENTUCKY

LOUISVILLE DIVISIONCASE NUMBER 3:13-CV-01207-JGH

KENTUCKY WATERWAYS ALLIANCE,SIERRA CLUB, APPALACHIAN VOICES, andKENTUCKIANS FOR THE COMMONWEALTH Plaintiffs

V.

GINA MCCARTHY, in her official capacity as

ADMINISTRATOR, UNITED STATES

ENVIRONMENTAL PROTECTION AGENCY,

And

HEATHER MCTEER TONEY, in her official

capacity as REGIONAL ADMINISTRATOR,

UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY REGION 4,Defendants

FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE

RELIEF

INTRODUCTION

This action arises under 28 U.S.C. 1331 and 5 U.S.C. 702. Plaintiffs seek a

declaration that the United States Environmental Protection Agencys (EPA) approval

under 33 U.S.C. 1313(c) on November 15, 2013, of changes to Kentuckys water

quality standards regarding selenium, eutrophication, and nutrients contained in

Kentucky Administrative Regulation 401 KAR 10:031 as being consistent with federal

water quality standards and the Clean Water Act (CWA), was arbitrary, capricious and

otherwise contrary to law. Plaintiffs further seek an order setting aside that approval of

changes to the selenium, eutrophication, and nutrient standards; injunctive relief directing

Case 3:13-cv-01207-JGH Document 8 Filed 02/28/14 Page 1 of 23 PageID #: 73


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the EPA to disapprove the chronic aquatic life water quality criteria for selenium and the

changes to the Kentucky definition and criteria regarding eutrophication and nutrients

that were contained in 401 KAR 10:001(30) and 10:031 that were submitted by the

Commonwealth of Kentucky; an order remanding the matter to defendants for further

consideration; and for further relief to which plaintiffs are entitled as a matter of law.

PARTIES

1. The Kentucky Waterways Alliance (KWA) is a nonprofit, membershiporganization recognized as tax exempt under Section 501(c)(3) of the Internal Revenue

Code, with over 700 members whose use and enjoyment of the water resources of the

Commonwealth of Kentucky for recreational, aesthetic and other beneficial purposes.

The KWA and its members are adversely affected by the approval by the EPA of chronic

water quality criteria for selenium and criteria for eutrophication and nutrients that do not

comply with the Clean Water Act. The Director of the Kentucky Waterways Alliance is

Judith D. Petersen, and the address and telephone number of the organization is 120

Webster Street, Suite 217, Louisville, KY 40206, 502-589-8008.

2. Judith Petersen is both a member of and Director of the Kentucky WaterwaysAlliance. Ms. Petersen uses and enjoys rivers, streams and lakes in the Commonwealth

where the water quality is threatened or has been impaired by selenium, eutrophication

and nutrients. Ms. Petersen, as a citizen and user of waters of the Commonwealth, has

recreational, aesthetic, and economic interests that have been and will be adversely

affected by the Administrators approval of water quality standards for selenium,

eutrophication, and nutrients that is contrary to the Clean Water Act and the



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Administrative Procedure Act. and risks allowing selenium and nutrient pollution

discharges to occur without effective control.

3. The Cumberland Chapter of the Sierra Club is the state chapter of a nationalconservation organization with a long tradition of advocacy on behalf of the environment.

The Cumberland Chapter has more than 4,800 members whose use and enjoyment of the

water resources of the Commonwealth of Kentucky for recreational, aesthetic, and other

beneficial purposes is adversely affected by the EPA Acting Regional Administrators

approval on November 15, 2013, of chronic aquatic life water quality criteria for

selenium, eutrophication, and nutrients that do not comply with the Clean Water Act.

The Chair of the Cumberland Chapter is Alice Howell, and the address and phone

number of that organization is P.O. Box 1368, Lexington, KY 40588-1368, ph. 859-296-

4335.

4. Alice Howell is also a member of the Sierra Club Cumberland Chapter, and is aresident of Lexington, Kentucky. Ms. Howell uses and enjoys the rivers, streams, and

lakes in the Commonwealth, including those where the water quality is threatened or has

been impaired by the discharge of selenium, eutrophication, and nutrients. Ms. Howell is

a Sierra Club member and volunteers in the Kentucky River Watershed Watch. As a

citizen and user of the waters of the Commonwealth, Ms. Howell has recreational,

aesthetic, and economic interests that have been and will be adversely affected by the

Administrators approval of water quality standards for selenium, eutrophication, and

nutrients that is contrary to the Clean Water Act and the Administrative Procedure Act

and risks allowing selenium and nutrient pollution discharges to occur without effective

control.



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5. Appalachian Voices is a nonprofit, membership organization recognized as taxexempt under Section 501(c)(3) of the Internal Revenue Code incorporated under the

laws of the State of North Carolina, working to solve the environmental problems that

have the greatest impact on the people who live in the central and southern Appalachian

Mountains. Appalachian Voices has approximately 800 total members and approximately

30 members in Kentucky whose use and enjoyment of the water resources of the

Commonwealth of Kentucky for recreational, aesthetic, and other beneficial purposes is

adversely affected by the EPA Acting Regional Administrator's approval on November

15, 2013, of chronic aquatic life water quality criteria for selenium, eutrophication, and

nutrients that do not comply with the Clean Water Act. Among those members is Landra

Lewis, a Kentucky resident who uses and enjoys the water resources of the

Commonwealth and whose use and enjoyment have been and will be adversely affected

by the Administratorsapproval of water quality standards for selenium, eutrophication,

and nutrients that is contrary to the Clean Water Act and the Administrative Procedure

Act and risks allowing selenium and nutrient pollution discharges to occur without

effective control.. The executive director of Appalachian Voices is Tom Cormons, and

the address and phone number of the organization is Appalachian Voices, 171 Grand

Boulevard, Boone, North Carolina 28607, (828)-262-1500.

6. Kentuckians For The Commonwealth is a social justice organization withroughly 8,000 members in 90 counties in the Commonwealth, whose use and enjoyment

of the water resources of the Commonwealth of Kentucky for recreational, aesthetic, and

other beneficial purposes is adversely affected by the Acting Regional Administrators

approval of a state water quality standard that does not comply with the Clean Water Act.



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The Executive Director of Kentuckians For The Commonwealth is Burt Lauderdale, and

the address and phone number of the organization is P.O. Box 1450, London, Kentucky

40743, (606) 878- 2161.

7. Doug Doerrfeld is a member of Kentuckians For The Commonwealth and aresident of Elliott County, Kentucky. Mr. Doerrfeld uses and enjoys rivers, streams and

lakes in the Commonwealth where water quality is threatened or has been impaired by

selenium and, as a citizen and user of the waters of the Commonwealth, has recreational,

aesthetic, and economic interests that have been and will be adversely affectedby the

Administrators approval of water quality standards for selenium, eutrophication, and

nutrients that is contrary to the Clean Water Act and the Administrative Procedure Act

and risks allowing selenium and nutrient pollution discharges to occur without effective

control..

8. Each of the Plaintiff organizations and their members are persons with interestswhich are adversely affected by the Acting Regional Administrators arbitrary and

capricious approval on November 15, 2013, of a state water quality standard that does not

comply with the Clean Water Act, and those interests in the use, enjoyment, and

protection of waters of the Commonwealth from selenium and nutrient pollution are

within the zone of interests sought to be protected by the Clean Water Act. The injuries

complained of herein are a direct result of the approval of the revisions to state water

quality standards by the EPA under 33 U.S.C. 1313, and the relief sought in this

Complaint will redress those injuries.

9. Gina McCarthy is sued in her official capacity as Administrator of the UnitedStates Environmental Protection Agency, which is that agency of the federal government



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to which administration and enforcement of the Clean Water Act (CWA or "the Act")

has been delegated by Congress.

10. Heather McTeer Toney is sued in her official capacity as the RegionalAdministrator of the United States Environmental Protection Agencys Region 4, which

is the office of EPA directly responsible for approving or disapproving revisions to water

quality standards submitted by the Commonwealth of Kentucky.

JURISDICTION AND VENUE

11. Jurisdiction to review the EPAs decision to approve the Kentucky state waterquality standard, 401 KAR 10:031, is vested in this Court under 28 U.S.C. 1331, which

vests this Court with original jurisdiction over all civil actions arising under the

Constitution, laws or treaties of the United States and the decision is reviewable under the

Administrative Procedure Act (APA), 5 U.S.C. 701-706. The approval by the EPA

Administrator of a state water quality standard under 33 U.S.C. 1313 is a matter arising

under a law of the United States.Venue is appropriate in this District under 28 U.S.C.

1391(e).

LEGAL BACKGROUND

12. Paragraphs 1-11 are incorporated herein by reference as if fully set forth below.13. The Clean Water Act, 33 U.S.C. 1251 et seq., is a comprehensive water

quality statute designed to restore and maintain the chemical, physical and biological

integrity of the Nations waters. 33 U.S.C. 1251(a). The Act establishes a goal of

attaining water quality which provides for the protection and propagation of fish,

shellfish, and wildlife. 33 U.S.C. 1251(a)(2). States are obligated by 33 U.S.C. 1313 to

develop and implement standards for protection of water quality conforming to the



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minimum standards established by the EPA Administrator. Such water quality standards

consist of a designated use for the water bodies involved and water quality criteria that

will protect the designated use. 33 U.S.C. 1313(c)(2)(A).

14. States are required to identify waters within their boundaries that are notattaining water quality standards. For each such impaired water, states must develop a

total maximum daily load for the offending pollutant, which when achieved will result

in compliance with the water quality standard. 33 U.S.C. 1313(d).

15. Pursuant to 33 U.S.C. 1313(c)(1), states must hold public hearings to reviewtheir water quality standards and, if appropriate, modify existing standards or adopt new

standards. See also 40 C.F.R. 131.20(a).

16. When establishing water quality criteria, [s]tates must adopt those waterquality criteria that protect the designated use. Such criteria must be based on sound

scientific rationale and must contain sufficient parameters or constituents to protect the

designated use. For waters with multiple use designations, the criteria shall support the

most sensitive use. 40 C.F.R. 131.11(a)(1); see also id. at 131.5(a)(2).

17. When establishing numeric water quality criteria, states must base the values onEPAs National Recommended Water Quality Criteria Guidance, published pursuant to

CWA 304(a), 33. U.S.C. 1314(a), on the 304(a) Guidance modified to reflect site -

specific conditions, or on [o]ther scientifically defensible methods. 40 C.F.R.

131.11(b).

18. Whenever a state adopts a new or revised standard, it must submit that standardto EPA for approval. 33 U.S.C. 1313(c)(2); 40 C.F.R. 131.20(c). The new or revised

standard only becomes the applicable water quality standard for the state if EPA



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determines that the standard meets all requirements of the Act. 33 U.S.C. 1313(c)(3);

40 C.F.R. 131.21(c).

19. All surface waters in Kentucky are by default designated for the use of, amongothers, warm water aquatic habitat. 401 KAR 10:026 5(2)(a). Kentucky defines the

indigenous aquatic community to mean naturally occurring aquatic organisms

including bacteria, fungi, algae, aquatic insects, other aquatic invertebrates, reptiles,

amphibians, and fishes. 401 KAR 10:001(40).

20. EPA Guidance explains that aquatic life criteria need not necessarily fullyprotect all species at times and places. However, the criteria should fully protect

sensitive species that are commercially or recreationally important. Stephens et al.,

U.S. EPA, Office of Research and Development, Guidelines for Deriving Numerical

National Water Quality Criteria for the Protection of Aquatic Organisms and their Uses

(1985) at 13.

21. All surface waters in Kentucky are, by default, also designated for the use ofprimary contact recreation, secondary contact recreation, and domestic water supply. 401

KAR 10:026 5(2)(a). All of these uses may become impaired through nutrient pollution

that causes excessive plant or algal growth.

22. The Administrative Procedure Act (APA), 5 U.S.C. 701-06, provides that[a] person suffering legal wrong because of agency action, or adversely affected or

aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial

review thereof. 5 U.S.C. 702.

23. The EPA is a federal agency whose actions are subject to review under theAPA.



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24. The APA provides that a court shall hold unlawful and set aside agency action,findings, and conclusions found to bearbitrary and capricious, anabuse of discretion,

or otherwise not in accordance with the law, 5 U.S.C. 706(2)(A), or agency action that

is undertaken without observance of procedure required by law, 5 U.S.C. 706(2)(D).

FACTUAL BACKGROUND

25. Paragraphs 1-24 are incorporated herein by reference as if fully set forth below.26. The federal water quality standards at issue in this case revised the chronic

warm water aquatic life water quality criteria for selenium and revised the definition of

eutrophication, which will be used to evaluate compliance with or violation of the revised

nutrient criteria.

27. EPA has designated selenium as a toxic pollutant pursuant to CWA Section307(a)(1), 33 U.S.C. 1317(a)(1). See40 C.F.R. 401.15.

28. EPA has long recognized eutrophication and nutrient pollution as a majorsource of impairment of the nations waters and has stated that high nitrogen and

phosphorus loadings, or nutrient pollution, result in harmful algal blooms, reduced

spawning grounds and nursery habitats, fish kills, oxygen-starved hypoxic or dead

zones, and public health concerns related to impaired drinking water sources and

increased exposure to toxic microbes such as cyanobacteria. Nutrient problems can

exhibit themselves locally or much further downstream leading to degraded estuaries,

lakes, and reservoirs, and to hypoxic zones where fish and aquatic life can no longer

survive. (Memo of Benjamin H. Grumbles, Assistant Administrator for Water

5/25/2007).



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29. The Commonwealth of Kentucky, Natural Resources and EnvironmentalProtection Cabinet, Division of Water (DOW) filed proposed amended water quality

standards on August 15, 2012. Included in the proposed changes to the Kentucky

standards were changes to the criteria regarding selenium and nutrients and a change to

the definition of eutrophication, which is a critical aspect of the nutrient standard. On

September 27, 2012, a public hearing was held on the proposed standards and written

comments were also received. Plaintiffs objected to the changes at the hearing and in

public comments.

30.

On May 31, 2013, revisions to 401 KAR 10:031 relating to water quality

standards promulgated by the DOW became effective under Kentucky law after referral

to the second legislative committee pursuant to KRS Chapter 13A, the statutory chapter

governing the state process for adopting and revising administrative regulations.

Included in the revisions to 401 KAR 10:031 were changes to the existing warm water

aquatic life water quality criteria for selenium, eutrophication, and nutrient pollution.

31. The DOW transmitted those revisions for review by the EPA on May 23, 2013,stating that the revisions were duly adopted pursuant to Kentucky law.

Changes to the Selenium Criteria

32. The revision of the chronic water quality criteria for selenium transformed theformer chronic limit of 5 ug/l as measured in the water column, to fish tissue-based water

quality criteria, with the former regulatory limit of 5 ug/l now serving as a trigger for

when fish tissue would need to be collected in order to determine whether the

concentration of selenium in the sampled tissue exceeded the new regulatory standard.

Kentucky explained the new standard in this manner:



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Kentucky has adopted chronic water quality criteria for selenium of

8.6 ug/g (dry weight) of whole fish tissue or, 19.3 ug/g (dry weight)

of fish egg/ovary tissue in 401 KAR 10:031 Section 6, Table 1. Indeveloping the proposed chronic water quality criteria for selenium,

the agency determined that the trigger level of 5.0 ug/l is a

protective approach. The 5.0 ug/l trigger level is a screening tool thatwill assure that fish communities, and therefore aquatic life, areprotected from potentially harmful selenium bioaccumulation.

November 1, 2013 letter from Kentucky Department of Environmental Protection

Commissioner Bruce Scott, to Region IV Water Protection Division Director James

Giattina. A copy of the letter is annexed hereto as Appendix A.

33. The standards fish tissue concentration was derived by averaging the fishtissue concentrations deemed to be protective in four separate taxa: Lepomis (bluegill),

Salvelinus(Brook Trout),Esox(Northern Pike), andMicropterus(Largemouth Bass).

34. Effluent limitations in CWA discharge permits (called Kentucky PollutantDischarge Elimination System or KPDES permits in Kentucky), are established based

on categorical effluent limitations adopted for the industrial activity, or through water-

quality based effluent limitations (WQBEL) based on the water quality, flow, and other

characteristics of the particular receiving water, or through a combination of both

approaches. WQBELs are required where categorical effluent limitations are not

adequate to ensure that a discharge does not cause or contribute to a violation of a water

quality standard. 33 U.S.C. 1311(b)(1)(A), (C). The KPDES permit translates the

general water quality criteria into enforceable permit limits applicable to the particular

discharge and discharger.

35. By letter dated October 25, 2013, EPA Region IV Water Protection DivisionDirector James Giattina requested information concerning how the Commonwealth

plans to establish KPDES permit limitations for the chronic fish tissue criteria for



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dischargers where fish are present in or immediately downstream of the receiving water

and also where fish are not present in such waters. The Division Director explained,

This information will assist the EPA in its review of the Commonwealths water quality

criteria submission. A copy of that letter is annexed hereto as Appendix B.

36. The EPA inquiry reflected a concern voiced by Plaintiff organizations, amongothers, that a regulatory standard based on fish-tissue concentration could not be

effectively monitored or enforced if sufficient fish tissue could not be obtained.

37. In response to the October 25, 2013 letter, Kentucky Department ofEnvironmental Protection Commissioner Bruce Scott explained that, while the

implementation procedures for implementing the new chronic selenium criteria were

still in development, that in the event that sufficient fish tissue cannot be obtained, the

proposed KPDES permit will state that if adequate fish tissue cannot be obtained to

determine permit compliance with the fish-tissue limit the permit holder will be deemed

to be in non-compliance with the proposed KPDES permit for exceeding the chronic

trigger level as established in the proposed KPDES permit. November 1, 2013 letter,

supra. Commissioner Scott made clear that the letter represented only Kentuckys

intentions for implementing the standard, and that the implementation procedures

would be subject to future public comment and review by the Department. Id.

38. On November 15, 2013, Acting Regional Administrator Stanley Meiburg issueda Decision Document of the United States Envir onmental Protection Agency Review of

Amendments to Kentuckys Water Quality Regulations at Chapter 401 KAR 10:001,

10:026 and 10:031 Under [Section] 303(c)of the Clean Water Act. A copy of that

document is annexed hereto at pages of Appendix C.



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39. Through the decision document, EPA disapproved a revision to the Kentuckyacute water quality criterion for selenium because [t]he acute criterion that Kentucky has

adopted does not provide [aquatic life] protection because it is based on water-only

exposure [to selenium], with no associated dietary exposure. Therefore the acute criterion

adopted by the Commonwealth is not scientifically defensible or consistent with 40 CFR

131 and the CWA. Decision Document, supra, at 12.

40. With respect to the chronic water quality criteria for warm water aquatic habitatfor selenium, the Decision Document approved the amended chronic water quality

criteria for warm water aquatic habitat for selenium as being scientifically defensible

and protective of the designated uses of warm water aquatic habitat in the

Commonwealths water bodies. The criteria are therefore consistent with 40 C.F.R. 131

and the CWA and are approved.

41. With respect to the 5.0 ug/l trigger, theDecision Document stated that [t]he5.0 ug/l trigger value is not a new or revised water quality standard. Therefore, the EPA

is not acting under CWA Section 303(c) authorities on the trigger value. The EPA

recognizes the advantages of expressing the chronic aquatic life criteria as a tissue-based

concentration, yet also understands the need for appropriate translation into a water

column value for purposes such as meeting the permitting requirements of Clean Water

Act Section 402 and the implementing regulations at 40 CFR 122.44. In fact, the EPA

intends to recommend a water column translation as part of its forthcoming CWA 304(a)

criteria. At that time the EPA will urge states to modify their water quality standards to

include a water column translation for selenium as they undertake their respective

triennial reviews in accordance with the Clean Water Act.



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42. Prior to EPAs approval, the Kentucky Ecological Services Field Office of theU.S. Fish and Wildlife Service (USFWS) reviewed and sent comments on the proposed

fish tissue-based chronic selenium standard to the Kentucky Division of Water. USFWS

noted that tissue-based criteria for selenium are unprecedented in the United States and

recommended that DOW seek independent peer review at a nation scale for the criteria

so that recognized selenium experts could review the DOWs interpretation of the

literature and criteria derivation for scientific soundness. March 7, 2013 Letter from

Kentucky Ecological Services Field Office Field Supervisor Virgil Lee Andrews, Jr., to

Kentucky Division of Water Director Sandy Gruzesky. A copy of the letter is annexed

hereto as Appendix D.

43. The USFWS letter also criticized Kentuckys proposed chronic fish tissue-based criteria for, among other things, allowing selenium to cycl[e] in the food web at

an undetermined level, thus posing risks to biota that are more sensitive than fish and for

failing to address situations where fish are absent in selenium-affected waters.

44. In comments to the Kentucky DOW and to US EPA, citizen groups likewisecriticized the proposed chronic selenium criteria. They noted that because the criteria

only measure compliance based on the selenium concentrations in fish tissue, they

wrongly exempt fishless streams and fail to protect aquatic life such as salamanders,

crayfish, and insects. They argued that the standard lacks any means by which streams

that have been polluted by selenium to the point that they no longer support fish

populations can be determined to be impaired for selenium for the purposes of 33 U.S.C.

1311(b)(1)(C) and 1313(d).



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45. The citizen commenters also criticized the standard for failing to protectsensitive, commercially and recreationally important species such as bluegill and catfish.

They faulted DOW for deriving the standard by averaging the fish-tissue values for four

common genera instead of basing it on the most sensitive commercially or recreationally

species, such as bluegill. They also criticized DOW for failing to include available data

on sensitive catfish.

Changes to the Eutrophication and Nutrient Criteria

46. In its August 15, 2012 proposal, DOW proposed to amend the existingdefinition of eutrophication at 401 KAR 10:001(30) from:

means the enrichment of a surface water by the discharge or addition of a

nutrient

to:means the enrichment of a surface water with nutrients nitrogen and

phosphorus resulting in adverse effects on water chemistry and the

indigenous aquatic community. Resulting adverse effects on waterchemistry manifest by daily dissolved oxygen supersaturation followed by

low dissolved oxygen concentrations and diurnal increase in pH. Resulting

adverse effects on the indigenous aquatic community include:

(a) Nuisance algae blooms;(b) Proliferation of aquatic plants;

(c) Displacement of diverse fish or macroinvertebrate community by

species tolerant of nutrient-enriched environments; or(d) Fish kills brought on by severe, sudden episodes of plant nutrient

enrichment.

47. The existing definition at 401 KAR 10:001 (30) also had a direct relationship to401 KAR 10:031 1, the current narrative nutrient water quality standard, which DOW

proposed to change from:

Nutrient Limits. In lakes and reservoirs and their tributaries, and other

surface waters where eutrophication problems may exist, nitrogen,phosphorus, carbon, and contributing trace element discharges shall be

limited in accordance with:

(1) The scope of the problem;(2) The geography of the affected area; and



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(3) Relative contributions from existing and proposed sources.

to:

Nutrient Criteria. Nutrients shall not be elevated in surface water to a

level that results in eutrophication.

48.

Plaintiffs objected to the proposed change to the eutrophication criteria on a

number of grounds including that the standards were reactive and appeared to allow

nutrient pollution and even algal blooms until the pollution actually had an adverse effect

on the aquatic community. DOW adopted the proposed changes over the objections

without clarifying whether nutrient pollution would be regulated to prevent

eutrophication from occurring and stated that a water body would not be listed as

impaired even if it had had algal blooms unless there had actually been adverse effects on

water chemistry and the indigenous aquatic community.

EPAs Endangered Species Act Consultation with U.S. Fish and Wildlife Service

49. As stated above, on November 15, 2013, EPA approved the proposed changesto the selenium and eutrophication standards. In its letter to the Kentucky Energy and

Environment Cabinet, EPA explained that in addition to its review under Section 303 of

the CWA, Section 7(a)(2) of the Endangered Species Act[, 16 U.S.C. 1536,] requires

federal agencies, in consultation with the U.S. Fish and Wildlife Service, to ensure that

their actions are not likely to jeopardize the continued existence of federally listed

species. EPA stated that its decision to approve revisions within Kentucky Water

Quality Regulations contained in Chapter 401 KAR 10:001, 10:026, and 10:031 is subject

to the results of consultation under section 7 of the ESA.

50. On November 14, 2013, EPA sent to U.S. Fish and Wildlife Service (USFWS)a biological evaluationthat concluded that Kentuckys revised water quality standards



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for nutrients and selenium were not likely to adversely affect listed species and

requested USFWSs concurrence with that determination.

51. On December 27, 2013, USFWS wrote to Annie Godfrey, Chief Water QualityStandards Section, U.S. EPA, Region 4 and explained that USFWS did not concur with

EPAs not likely to adversely affect determination. The letter commented, inter alia:

That the after-the-factconsultation request did not conform to the consultationprocess outlined in the applicable memorandum of agreement between USEPA

and the USFWS;

That it was evident that Kentuckys revised eutrophication criteria are

insufficient to avoid adverse effects to federally-listed species;and

That USFWS strongly recommended that nationally recognized selenium expertsreview the DOWs interpretation of the literature and criteria derivation for

scientific soundness because the documents developed by KDOWdo not

explore whether the actual water quality/selenium bio-uptake chemistries found in

Kentucky waters fit the fish tissue model proposed in these documents. USFWS

voiced its concern that egg-laying vertebrates, such as fish, amphibians, reptiles,

water birds and other aquatic dependent wildlife may be exposed to excessive

dietary selenium before fish tissue concentrations ever approach the recently-

approved whole body chronic criterion.

COUNT I

EPAS RELIANCE ON KENTUCKY DEPARTMENT OF ENVIRONMENTAL

PROTECTION COMMISSIONER BRUCE SCOTTS NOVEMBER 1,2013

LETTER IN APPROVING THE REVISED CHRONIC WATER QUALITY

CRITERIA FOR SELENIUM WAS ARBITRARY, CAPRICIOUS AND

OTHERWISE INCONSISTENT WITH LAW



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52. Paragraphs 1-51 are incorporated herein by reference as if fully set out below.53. The EPA approval of the tissue-based chronic water quality criteria for

selenium was premised on a commitment made by Commissioner Bruce Scott in the

November 1, 2013, letter to James Giattina, that in those instances in which the water

column value of 5 ug/l triggered the requirement for sampling of fish tissue but where

sufficient fish tissue for analysis could not be collected, a KPDES permittee would be

deemed in noncompliance for exceeding the water column trigger value of 5.0 ug/l.

54. This commitment was made in violation of KRS Chapter 13A, which expresslyprohibits any agency of the Commonwealth from altering or abridging any regulation by

policy or interpretation.

55. 401 KAR 10:031 Section 6(1) Table 1 contains the water quality criteria forselenium, and notes clearly that the chronic criteria are 8.6 and 19.2, the former being the

concentration in u/g (dry weight) of whole fish tissue[,] and the latter being the

concentration in ug/l (dry weight) of fish egg/ovary tissue.

56. That same table includes a footnote 11 to the 8.6 ug/g tissue-based criteria,noting that [a] concentration of five and zero tenths (5.0) ug/l or greater selenium in the

water column shall trigger further sampling and analysis of whole-body fish tissue or

alternatively of fish egg/ovary tissue. The 5.0 ug/l value is thus plainly a trigger for

sampling of fish tissue in order to determine if a violation of the water quality criteria

exists, and is not, under the plain language of 401 KAR 10:031 Section 6(1) Table 1, a

regulatory value the exceedance of which constitutes a violation without more.

57. The commitment to use this trigger value as a regulatory limit in the absenceof fish tissue or eggs to sample, is in direct violation of KRS Chapter 13A and is beyond



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the capacity of the agency to promise absent further regulatory changes to transform the

former regulatory value and now trigger value back to a regulatory standard in the

absence of sufficient tissue for sampling.

58. Inasmuch as the proposed tissue-based criteria lack a water-column translatorvalue, since the proposed translator value cannot be enforced by Kentucky, EPA acted

arbitrarily, capriciously, and in a manner inconsistent with law in relying on the

November 1, 2013, letter to conclude that the proposed chronic tissue-based criteria are

protective of the designated use of warm water aquatic habitat in the Commonwealths

water bodies and is therefore consistent with 40 C.F.R. 131 and the CWA[.]

COUNT II

EPAS CONCLUSION THAT THE REVISED CHRONIC WATER QUALITY

CRITERIA FOR SELENIUM WILL PROTECT THE DESIGNATED USE OF

WARM WATER AQUATIC HABITAT WAS ARBITRARY, CAPRICIOUS AND

OTHERWISE INCONSISTENT WITH LAW BECAUSE THE CRITERIA FAIL

TO PROTECT FISHLESS STREAMS

59. Paragraphs 1-58 are incorporated herein by reference as if fully set out below.60. EPA may only approve a revision to a state water quality standard if the

standard is protective of the designated use to which it applies. 40 C.F.R. 131.5, 131-

21(b).

61. Protection of aquatic life includes protection of not only fish communities, butalso other naturally occurring aquatic organisms including bacteria, fungi, algae, aquatic

insects, other aquatic invertebrates, reptiles, [and] amphibians. See 401 KAR

10:001(40).



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62. Kentuckys chronic aquatic life fish tissue criteria for selenium measurecompliance based solely on the concentration of selenium in fish tissue and provide no

means for determining compliance when a water body lacks fish.

63. Because Kentuckys criteria rely solely on fish tissue concentrations todetermine compliance, the criteria fail to protect non-fish aquatic life and fishless bodies

of water and thus are not protective of the designated use of warm water aquatic habitat.

64. EPAs approval of Kentuckys standard was thus arbitrary, capricious, and notin accordance with law.

COUNT III

EPAS CONCLUSION THAT THE REVISED CHRONIC WATER QUALITY

CRITERIA FOR SELENIUM WILL PROTECT THE DESIGNATED USE OF

WARM WATER AQUATIC HABITAT WAS ARBITRARY, CAPRICIOUS AND

OTHERWISE INCONSISTENT WITH LAW BECAUSE THE CRITERIA FAIL

TO PROTECT SENSITIVE COMMERCIALLY AND RECREATIONALLY

IMPORTANT SPECIES

65. Paragraphs 1-64 are incorporated herein by reference as if fully set out below.66. EPA may only approve a revision to a state water quality standard if the

standard is protective of the designated use to which it applies. 40 C.F.R. 131.5(a)(2),

131.21(b).

67. According to EPA Guidance, criteria developed for the protection of aquaticlife should protect all commercially or recreationally important species.

68. Kentuckys chronic aquatic life fish tissue criteria were derived by averagingthe fish-tissue values for four common genera of fish. It was not based on the fish tissue

values for sensitive, commercially or recreationally important fish such as bluegill and

catfish.



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69. Because Kentuckys criteria do not protect all commercially or recreationallyimportant species, they are not protective of the designated use of warm water aquatic

habitat.

70. EPAs approval of Kentuckys standard was thus arbitrary, capricious, and notin accordance with law.

COUNT IV

EPAS APPROVAL OF THE CHANGES TO THE EUTROPHICATION AND

NUTRIENT CRITERIA WAS ARBITRARY, CAPRICIOUS AND OTHERWISE

INCONSISTENT WITH LAW

71.

Paragraphs 1-70 are incorporated herein by reference as if fully set forth below.

72. Water quality standards must be protective of the most sensitive use includingaquatic life, recreation and aesthetic uses. Water quality standards must also be protective

of existing uses including endangered species. Further, criteria must prevent impairment

of uses rather than wait to address impairments that have arisen.

73. The changes to the eutrophication definition and criteria fail to effectivelycontrol nutrient pollution so as to prevent eutrophication from occurring, and are

insufficient to avoid adverse effects to existing water uses, including federally-listed

species.

74. EPAs approval of Kentuckys changes to the eutrophication and nutrientcriteria was thus arbitrary and capricious and not in accordance with law.

CONCLUSION AND PRAYER FOR RELIEF

WHEREFORE, for the reasons above stated, Plaintiffs respectfully request that this

Court:

1. Accept jurisdiction over this action,



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2. Determine and declare that the Administrators November 15, 2013 approval ofthe Kentucky water quality chronic criteria for selenium was unlawful within the meaning

of 5 U.S.C. 706 in that the action was arbitrary, capricious and otherwise not in

accordance with law;

3. Determine and declare that the Administrators November 15, 2013, approval ofthe Kentucky water quality standard for nutrients and the definition of eutrophication

were unlawful within the meaning of 5 U.S.C. 706 in that the action was arbitrary,

capricious and otherwise not in accordance with law;

4.

Enter a mandatory injunction under Fed. R. Civ. Pro. 65 setting aside the

November 15, 2013 approval and directing the Administrator to finalize federal water

quality standards that comply with the Clean Water Act within thirty days;

5. Award the plaintiffs all costs and expenses incurred in this action (includingattorney and expert witness fees); and

6. Award the plaintiffs all other relief to which they appear or may becomeentitled.

Respectfully submitted,

/s/ THOMAS J. FITZGERALD

__________________________

Thomas J. FitzGerald

Kentucky Resources Council, Inc.P.O. Box 1070

213 St. Clair Street, Suite 200

Frankfort, Kentucky 40602

(502) 875-2428(502) 875-2845 fax

KBA Id. 22370

Benjamin A. Luckett,Pro hac vice



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Appalachian Mountain Advocates

P.O. Box 507

Lewisburg, WV 24901(304) 645-0125

(304) 645-9008 fax

Counsel for Plaintiffs

W. Henry Graddy, IV

Randal A. StroboW.H. Graddy & Associates

137 North Main St.

Versailles, KY 40383

[email protected]

[email protected]

Albert Ettinger

53 W. Jackson #1664

Chicago, Illinois 60604

773-818-4825


Documents

Selenium Amended Complaint-1