Publication / Inside EPA
December 18, 2013
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Environmentalists Launch Suit Against EPA Over Kentucky Selenium Limits

Environmentalists have launched a lawsuit against EPA over the agency’s approval of Kentucky’s precedent-setting water quality standard for selenium, a policy that allows regulated entities to measure compliance in fish tissue, rather than in the water column, but which advocates say is unenforceable.

Environmentalists, who filed a Dec. 13 Notice of Intent (NOI) to sue, are concerned that if they do not reverse EPA’s approval of Kentucky’s standard, it will clear the way for several other states — including West Virginia, Tennessee and Virginia — to adopt similar measures and undermine their efforts to enforce strict requirements against coal mine operators, power plant owners and others whose facilities discharge high levels of selenium (Inside EPA, Dec. 13). The notice is available on InsideEPA.com. (Doc ID: 2455927)

According to one source, environmentalists decided to file suit after EPA Nov. 15 approved Kentucky’s standard for protecting aquatic life from chronic exposures to selenium, setting a precedent for other states to follow (Inside EPA, Nov. 22).

“That’s now the effective standard for Kentucky and it sends a signal to other states in the region that they will be approved by the EPA if they take this action,” the source says. “Unless there’s a decision reversing EPA’s action, I think the other dominoes are likely to fall.”

The NOI criticizes the two-step implementation method Kentucky announced in a Nov. 1 letter to EPA where the state explained that “the former regulatory limit of 5 [micrograms per liter (ug/L) is] 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.”

The notice — filed by seven groups, including Kentucky Waterways Alliance, The Cumberland Chapter of the Sierra Club and Appalachian Voices — argues that such a distinction in implementation is a violation of state law that prohibits “any agency of the Commonwealth from altering and abridging any regulation by policy or interpretation.” Additionally, by distinguishing the water column measurement as a trigger for sampling fish tissue in order to determine if a violation of the water quality criteria exists, the advocates argue it is not purely a “regulatory value” and is therefore unenforceable.

The planned litigation also highlights additional alleged violations surrounding the the Kentucky Department of Environmental Protection’s (KDEP) proposed implementation of water quality standards for waterbodies without fish. The KDEP letter commits to using the same trigger value of 5 ug/l as a regulatory limit in the absence of fish tissue or egg samples in a waterway. But the notice letter says doing so would be in direct violation of Kentucky Revised Statutes Chapter 13A because it would transform the new advisory value into a regulatory standard in the absence of fish tissue to test. The environmental groups also argue that the revised chronic water quality criteria for selenium is inconsistent with the law because it will fail to protect water quality in streams where algae and other aquatic life could still be susceptible to selenium.

Further, the groups are challenging EPA’s approval of Kentucky’s fish tissue limits, arguing that the criteria for selenium of 8.6 micrograms per gram (ug/g) of whole fish tissue or 19.3 ug/g of fish egg/ovary tissue (dry weight) is too weak because the criteria were determined by averaging the fish-tissue values for four common genera of fish in Kentucky instead of basing the limits on the most sensitive of the aquatic life. The notice says the limit “was not based on the fish tissue values for sensitive, commercially or recreationally important fish such as bluegill and catfish. Because Kentucky’s criteria do not protect all commercially or recreationally important species, they are not protective of the designated use of warm water aquatic habitat.”

Selenium is a naturally occurring non-metal stemming from discharges by a variety of industries and is linked to mortality, growth impediments and other adverse effects in aquatic species.

EPA’s current criteria for selenium, issued in 1987, is based on concentration of the substance in the water column. That criteria, 5 ug/L for chronic exposures and 20 ug/L for acute exposures, is extremely difficult to meet in discharge permits, resulting in a spate of citizen suits aimed at regulating discharges from coal mines, coal ash storage sites and other sources — many of which advocates do not believe are adequately regulated.

Many states and industry groups, especially coal mining operations in Appalachia, have been hoping the agency quickly decides on a new approach, because the delay in crafting a new national criteria has allowed scores of citizen suits against the mines and other dischargers. The suits, dozens of which are pending in federal courts in Virginia, West Virginia and Kentucky, have been aided by EPA’s strict 1987 criteria, which was crafted before large-scale surface mining operations began in the region.

Kentucky’s chronic standard of 8.6 micrograms per gram dry weight (ug/g/dw) for whole body fish tissue, or 19.3 ug/g for egg or ovary tissue, is drawn partly from a controversial 2004 Bush EPA proposed criteria that sets the standard based on fish tissue concentration but includes more recent studies to support chronic criteria based on fish exposure through dietary intake.

The agency tried a similar approach for mercury in 2001 but struggled to craft guidance for how to implement and enforce the fish-tissue limits in permits, water quality standards and other regulatory limits.

But environmentalists charge that this fish tissue-based standard is unenforceable, largely because it allows measurement of selenium levels in the tissue, rather than in the water column.

While environmentalists say they are willing to consider fish tissue-based standards, noting that diet is the primary pathway for selenium uptake in aquatic life, they would rather regulators translated contaminant levels in the water column to corresponding levels in fish based on a mathematical conversion factor known as a bioaccumulation factor (BAF). This approach would allow states to develop and utilize site-specific BAFs to set traditional water column concentrations in their water quality standards.

But industry officials have been concerned that states may utilize strict default values without consideration of site-specific data.

When EPA crafted guidance for implementing its 2009 mercury standard, it allowed states to use several approaches, including the BAF approach environmentalists favor, the direct fish tissue-measurement method the agency has now approved in Kentucky or a combination of the approaches.

In addition to challenging the form of Kentucky’s standard, advocates, including local groups like Appalachian Mountain Advocates, and national groups like the Sierra Club, have also charged that the standard violates anti-degradation rules that are intended to protect pristine waters and that the standard neglects certain sensitive species in violation of the Endangered Species Act.

“It’s an odd situation in that the EPA has approved Kentucky standards but their approval is subject to consultation under the Endangered Species Act,” the environmentalist says.

Advocates hope that by focusing on the endangered aquatic life in Kentucky streams–which include an endangered species of mussel–they could successfully argue the standard violates the ESA.

Environmentalists have also unsuccessfully urged EPA to reject the state standard because it was developed without allowing for adequate notice and comment.

While environmentalists are concerned the fish tissue-based approach is difficult to measure and enforce, Kentucky regulators Nov. 1 provided EPA with a preliminary plan for implementing the standard in an effort intended to ease EPAand environmentalist concerns.

In the Nov. 1 letter, KDEP officials detailed their “stated intentions for implementation of the revised proposed chronic water quality criteria for selenium,” though they noted that the plan was not final and would be subject to additional review.

The letter depicted a two-step approach to measuring water quality, first in a water column screening — with a threshold of 5 ug/L, EPA’s current criteria for protecting aquatic life — and then in a fish tissue measurement.

“A selenium concentration greater than 5.0 ug/L in the water column shall trigger further sampling and analysis of fish tissue, either whole body or fish egg/ovary tissue, to determine compliance with the criteria,” the letter says. Additionally, the department placed the burden of catching and testing fish on permit holders, stating that in the event of inadequate fish tissue samples “to determine permit compliance with the fish-tissue limit, the permit holder will be deemed to be in non-compliance with the proposed KDEP permit.”

But environmental advocates say the letter does not provide a firm enough commitment, noting that language in the letter states that “the implementation procedures are still in development” and are “subject to additional processes for review and comment.”

“There are no promises made in this letter,” the environmentalist says.

Even if advocates were to accept the two-step process detailed in Kentucky’s plan, at least one scientist argues that both the screening level and water quality standard must be strengthened. Wake Forest University Professor Dennis Lemly, a scientist who recently completed a study for environmentalists on selenium toxicity stemming from coal ash releases in North Carolina, says that regulators should significantly tighten both the fish tissue limit — strengthening it to 4 ug/g/dw from 8.6 ug/g/dw — and the water screening value — 2 ug/L instead of the current 5 ug/L limit — to ensure they are adequately protective. — Miranda Green