Beshear administration rushing to weaken water quality standard for selenium

Today in Frankfort, a group of lawmakers will consider a rushed proposal from Kentucky’s Division of Water to significantly weaken the water quality standard for selenium pollution. This is a big deal. Your help is needed to stop this proposal in its tracks.

Selenium pollution in Kentucky is a serious problem below some valley fills and other areas affected by large-scale coal mining. Selenium is a toxic pollutant that has severe consequences for fish and other aquatic life, as well as for animals higher up in the food chain. Studies have found that selenium bio-accumulates, meaning that even low concentrations of pollution in streams can lead to toxic accumulation in animal tissues, causing severe reproductive failure, deformities and death in fish, birds and other wildlife.

Despite the clear harm posed by selenium, the Kentucky Division of Water is now attempting to significantly weaken its water quality standards for selenium pollution. The new standards are based on flawed science and would be effectively unenforceable. What’s more, the Division of Water gave the public only 6 days notice of the change.

At 1 p.m. on Monday in Room 149 of the Capitol Annex in Frankfort, a legislative committee will review the Division of Water’s selenium proposal. You can make your voice heard by placing two phone calls on Monday morning (and, of course, please join KFTC members and our allies in the committee room if at all possible).

ACTION

1) On Monday morning starting at 7 a.m., call 1-800-372-7181 and ask to leave a message “for all members of the Administrative Regulation Review Committee.” Message: “Do not support proposed changes to Kentucky’s water quality standards for selenium. It is flawed, unenforceable, and lacks adequate public review. Ask the Division of Water to withdraw its proposal."

2) Call 502-564-0323 to leave a message for Bruce Scott, Commissioner for the Kentucky Department for Environmental Protection. Message: “Please withdraw your agency’s proposal to weaken Kentucky’s water quality standards for selenium pollution. It is flawed, unenforceable, and lacks adequate public review."

Thanks for taking action!

Here are a few more details about the proposed change

The Division of Water currently has two water quality standards for selenium: an acute criterion of 20 micrograms per liter (µg/L) and a chronic criterion of 5 µg/L. These measurements can be taken easily and fairly inexpensively by coal companies, regulatory agencies, and ordinary citizens who have proper training and equipment. And, while the numeric criteria have been criticized by many groups as not being protective enough of aquatic life, at least they provide clarity and can, in theory, lead to enforceable pollution limits on mining permits.

However, selenium pollution is proving to be an expensive problem for the coal industry. Several coal companies in West Virginia have had to invest tens of millions of dollars to treat selenium problems at their mine sites. This latest move by the Division of Water appears to be an attempt to protect coal companies operating in Kentucky from similar consequences.

Here’s what the DOW proposal would do:

1) It would increase the acute criterion for selenium by a factor of twelve, from 20 µg/L  to 258 µg/L, or in some cases even higher. (The U.S. Fish and Wildlife Service has criticized the existing 20 µg/L criterion as being too high to protect aquatic ecosystems, yet Kentucky proposes to raise it all the way to 258 µg/L!)

2) It would replace the chronic criterion of 5 µg/L in the water with a criterion based on the concentration of selenium in the eggs or ovaries of fish. The 5 µg/L value would still be used as a screen. But if selenium concentrations in the stream are found to be above that level, more expensive tests would be required to measure the selenium concentrations in the eggs and ovaries of fish before a determination could be made that the stream exceeds the water quality standard. (Of course, if fish populations have already been wiped out or do not exist in the stream, no such test would even be possible.)

Both moves should be rejected, as they are not based on sound science. Rather, they appear to be based on a flawed proposal that was pushed at one time by the EPA under the Bush administration, but rejected after much outcry.

Given the budget woes facing the DOW and the trouble the agency has had meeting its obligations to enforce the Clean Water Act in Kentucky, it is beyond comprehension that the DOW would propose a water quality standard for selenium that is far more complex, expensive, and difficult to verify than the current standard. One has to wonder if the purpose of the new standard isn’t to better protect aquatic life, but rather to create a system that can not effectively be enforced.

KFTC has signed onto formal comments about this proposal that will be submitted by Appalachian Mountain Advocates (AMA) on behalf of AMA, KFTC, Sierra Club, Kentucky Waterways Alliance, Appalachian Citizens Law Center, and Appalachian Voices. Those comments will be available on KFTC’s website after the hearing for anyone seeking more information.