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Settlement Sends Kentucky's Selenium Standard Back To EPA For Review

Karl Gruber

The future of Kentucky’s controversial changes to a water quality standard is up in the air, after a settlement last year sent the changes back for federal review.

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. The substance also bioaccumulates up the food chain, so as fish eat other fish, levels of selenium rise.

In November 2013, the Environmental Protection Agency approved changes to Kentucky’s water quality standard that changed the way selenium was measured. The state had requested permission to do away with the chronic — or long-term — standard, and instead institute a two-part process: If water testing reveals levels above a certain benchmark, it triggers fish tissue testing.

The EPA signed off on the changes, but environmental groups sued. In October, all the parties reached an agreement that sent Kentucky’s selenium standard back to the EPA for reconsideration. Part of that involves consulting the Endangered Species Act, which the agency was required to do and hadn’t completed the first time around.

Since then, the EPA has approved Kentucky’s fish tissue standard, but state Division of Water Director Peter Goodmann said it’s expected the agency will reject the state’s elimination of the chronic standard. In preparation for that, Kentucky has taken action to officially readopt the water column element.

“Where there are fish tissue to test, that takes precedence,” Goodmann said. “But for streams without fish, the water quality number stands.”

Appalachian Mountain Advocates attorney Ben Luckett, who represented the environmental groups, said he believes that water quality number — 5 micrograms per liter — is still too high. But he said the agreement is a win for the environment.

“In this case, we have EPA committed to officially taking a new action under the Clean Water Act when they finish their consultation under the Endangered Species Act,” Luckett said. “That aspect of it, really making it a more official process and creating a clearer timeline for when they’re required to complete that action, these were very important things.”

The agreement means a lawsuit the environmental groups filed against the EPA is temporarily stayed until the agency reconsiders the selenium standards. But the groups can revisit the lawsuit after the EPA issues a formal decision on Kentucky’s standards.


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