Beshear administration still pushing weakened water quality standard for selenium

On Tuesday, a legislative subcommittee will consider again a proposal from Kentucky’s Division of Water to significantly weaken the water quality standard for selenium pollution. In February, KFTC and allies helped block the proposal because of a lack of proper public notice. But the administration is persisting in helping the coal industry escape their liability, and is bringing back the same proposal after a brief public comment period.

The new standard is based on flawed science and would effectively be unenforceable – which we believe is the administration's reason for weakening the standard. Selenium pollution in Kentucky is a serious problem below some valley fills and other areas affected by large-scale coal mining, and is expensive and difficult to clean up. It bio-accumulates in animal tissue, causing serious health problems such as the spinal deformities shown in the fish above (photo Wake Firect University).

At 1 p.m. on Tuesday, April 9 in Room 149 of the Capitol Annex in Frankfort, the Administrative Regulation Review Subcommittee will review the Division of Water’s selenium proposal. Please make your voice heard by contacting subcommittee members and urge them to reject the selenium amendment (and, of course, please join KFTC members and our allies in the committee room on Tuesday if at all possible).

ACTION

Call the Legislative Message Line at 1-800-372-7181 on Monday or until Tuesday noon and ask to leave a message “for all members of the Administrative Regulation Review Subcommittee.” Message: “Do not support the proposed amendment to weaken Kentucky’s water quality standard for selenium. The cabinet's amendment is based on bad science and it's unenforceable. Please reject this amendment by finding it deficient."

The message line is open weekdays 8 a.m. to 4:30 p.m.

If you live in the district of one of the subcommittee members listed to the right, please leave an individual message for them so they know you are a constituent. Or, if you click on their name you will be linked to their email.

Please contact legislators again even if you already did so in response to recent alerts. Thanks for taking action!

Background


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 accountability.

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 submitted by Appalachian Mountain Advocates (AMA) on behalf of AMA, KFTC, Sierra Club, Kentucky Waterways Alliance, Appalachian Citizens Law Center, and Appalachian Voices.