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EPA Has Yet to Weigh in on Kentucky's Proposed Selenium Standard

The Environmental Protection Agency has yet to approve or reject Kentucky’sproposed water quality standard for selenium, but over the past few months there’s been lobbying on both sides of the issue.Earlier this month, representatives from several environmental groups went to visit EPA headquarters in Washington, D.C. They want the EPA to reject the standard. The executive director of the Sierra Club also sent the EPA a letter to that effect last week. Meanwhile, state environmental regulators worked with their federal counterparts to craft the new standard. The Kentucky Coal Association has also been involved, expressing support for the new standard to state and federal regulators.And there’s still no decision.So, what are the issues at stake here?Selenium is a naturally-occurring substance that's released into waterways during strip mining. In large amounts, it's toxic to both aquatic life and humans. Remember the pictures of two-headed trout? That birth defect was caused by high levels of selenium. The substance also bioaccumulates up the food chain, so as fish eat other fish, levels of selenium rise.Right now, Kentucky’s water quality standard for selenium is based on the amount of the substance that’s in the water. If testing reveals levels of selenium that are higher than is allowed, there’s a problem. But the new standard, which is pending EPA approval, changes the chronic selenium standard into a two-part process: if water testing reveals levels that are above a certain benchmark, that will trigger fish tissue testing.The Kentucky Department for Environmental Protection developed that new standard with help from the EPA. Commissioner Bruce Scott said because the greatest danger from selenium is to aquatic life, it makes sense to base the standard on the amount of the substance in fish.“Virtually all of the science that we have, that we’ve reviewed, which is some 80 plus studies up through this calendar year, and our discussions with U.S. EPA and U.S. Fish and Wildlife all indicate that the appropriate way to address selenium concerns is a via a fish tissue/egg ovary type number,” he said.But this is the point that environmental groups have an issue with. Mary Cromer is an attorney with the Appalachian Citizens' Law Center in Whitesburg. She doesn’t dispute the science or benefits to testing fish tissue. But she has issues with making that the default way to recognize a problem, mainly because high levels of selenium might make finding a fish to sample difficult.“So if you have any kind of chronic selenium problem, in a very short period of time you’re going to be extirpating the sensitive fish,” she said. “Let’s say you’re going a mile downstream or two miles downstream until you can find these fish. Well, what if you have five valley fills upstream? What if you have 20 valley fills upstream? There’s been no answer as to what enforcement would look like for those valley fills. It becomes an attenuated causation problem.”Cromer argued that by changing the standard, the Kentucky Department for Environmental Protection is making it harder for citizens to enforce the Clean Water Act. Testing for selenium in the water is relatively inexpensive and simple, but tissue sampling is more complicated.“That citizen enforcement has been critical. Particularly with the way the Energy and Environment Cabinet is run in Kentucky, there’s a real lack of enforcement,” she said. “So we have relied on the ability of citizens to be able to enforce these environmental protection laws, like the Clean Water Act. And this is a tool that the state is allowing to be pushed forward to basically stop citizen enforcement.”Bruce Scott disagreed that the standard isn’t enforceable, and says if there aren’t any fish available for testing, the standard would default back to the water column.But ultimately, the decision about what to do rests with the EPA (and then possibly the courts, if there’s litigation). The agency technically had 60 days to approve the standard and 90 days to reject it; now, both deadlines have passed. Scott said he’s not sure what to expect; though initially he was given the impression that the EPA would approve the new standard.“EPA’s current line of thinking is a little bit cloudy at this point in time,” he said. “They’ve sort of changed from ‘send it to us and we’ll approve it’ to ‘we’re looking at it and we’re deliberating it.’ So we don’t know exactly what they’re going to do. I don’t know that EPA knows exactly what they’re going to do. But their thought processes have clearly morphed over the last three months.”A spokeswoman for EPA Region 4 said she couldn’t speak to when a decision about the standard would be made, saying only: We are continuing to review the proposed revisions to Kentucky’s selenium water quality standards. Recently, a number of environmental groups from Kentucky and other surrounding states requested a meeting with EPA regarding the state’s proposed revisions. The meeting occurred last week and the agency is assessing the concerns raised.