Bill Penny
Bill Penny

Bill Penny is a Member in the Nashville office of Stites & Harbison. He is a member of the firm's Environmental, Natural Resources and Energy Service Group as well as the Green Industry Practice Group. Bill has more than 25 years experience in environmental law. You can contact him at william.penny@stites.com or by phone at 615-782-2308.

Bill Penny
Christina Davidow

Christina Bodewig Davidow is an Associate in the Nashville office of Stites & Harbison and a LEED Accredited Professional. She is a member of both the Environmental, Natural Resources and Energy Service Group as well as the Green Industry Practice Group. She may be contacted at christina.davidow@stites.com or by phone at 615-782-2323.

water

Revisions to Water Quality Standards Approved for Rulemaking Hearings

10.20.09 4:35 AM
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The Water Quality Control Board today authorized the Division of Water Pollution Control to conduct a series of public hearings in December on revisions to the Water Quality Standards.  The revisions are part of the triennial review of water quality standards.  The proposed rules have two major revisions.  Click on the rule number 1200-4-3 to review the Division's red-line version of the rules handed out today.

The proposed revisions will make changes to the selenium criterion for fish and aquatic life and recreation and changes in exceptional waters antidegradation determination procedures.  I filed a petition for rules on behalf of the Tennessee Mining Association in September requesting the board to adopt the EPA's lastest draft criteria for aquatic life.  Click here to see a copy of the Petition.  Because the Board initiated rulemaking on its own, we withdrew the petition and will instead provide comments during the public hearing process.  The changes appearing in the draft today are an improvement because they recognize both selenate and selenite forms, but the proposed criterion is the older EPA 1996 CWA 304(a) criterion which EPA withdrew from enforcement in the Great Lakes.  

The proposed rules offer a significant change to the antidegradation statement for exceptional waters social and economic justification procedures.  Current rules permit the Division to make the determination of degradation and whether degradation is justified.  Appeal by either the applicant or third party can be taken to the board.  The permit is stayed until the board has issued its final order.  The proposed rules provide that any challenge to their decision on degradation or justification must be taken up as part of the permit appeal process, but if the appeal is to the determination on the antidegradation determination, the permit is stayed pending final action.

Rulemaking hearings will be scheduled across the state, but the Board itself is going to take comment at its December 15, 2009 board meeting.  I would add that as part of the triennial review, comments can be made to change other requirements in 1200-4-3.

 

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  1. Thanks for the clarification.  You are absolutely correct.  I have changed the language to reflect that.

    – Bill Penny · October 27, 2009, 7:46PM

  2. Bill,

    I wanted to clarify one point in what you said about the proposed change in the appeal process in the Antidegradation Rule within the Water Qualtiy Standards.  Although the proposal is to do away with a separate appeal process for Antidegradation issues, if there is an appeal regarding such issues, it still provides for a stay of the permit.  In other words, the change is doing away with the potential for two different appeals on one permit, while maintaining the stay.

    Alan Leiserson 

    – Alan Leiserson · October 26, 2009, 4:52PM

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