Groups challenge EPA decision allowing Kentucky officials to gut clean water protection

On Friday, community and environmental groups took legal action against the U.S. Environmental Protection Agency for a recent decision allowing Kentucky to weaken its water quality standards for selenium, a pollutant common to mountaintop removal coal mines.

"KFTC and our allies have worked for years to make EPA fully aware of the systemic failures of Kentucky’s Energy and Environment Cabinet to protect our commonwealth’s people, waters and environment,” said Doug Doerrfeld, a member of KFTC’s litigation team. “In light of this history it is disgraceful that EPA would approve a weakened selenium standard that will not only leave aquatic life at risk but will make citizen enforcement all but impossible."

This new standard, which tests selenium levels in fish tissue instead of in rivers and streams where mine wastewater is discharged, is strikingly similar to one the Bush Administration rejected as too weak to protect sensitive aquatic species. The lawsuit alleges that the standard fails to meet protections in the Clean Water Act.

"There’s simply no scientific or legal justification for this EPA to approve a standard worse than one rejected by the Bush administration," said Alice Howell, chair of the Cumberland Chapter of the Sierra Club. "In doing so, EPA has made a bad situation much worse. The new selenium standard endangers the health of Kentucky’s already compromised waterways while opening the door for other states to do the same."

In mid-November, the EPA allowed Kentucky to change the way it monitors selenium pollution from surface mines, a change suggested by coal industry lobbyists, who appear to be motivated by citizen groups’ successful enforcement of the existing protections in West Virginia.

Selenium pollution is known to accumulate in fish and aquatic wildlife over time, causing deformities and reproductive failures. When a coal company destroys a mountain to get at the coal underneath, much of what’s left is dumped into nearby valleys and streams. This pollutes the local waterways with selenium, among other substances that pose a threat to fish and humans. Valley fills are a major source of the selenium pollution found at mountaintop removal mines.

"We repeatedly urged both EPA and the commonwealth to have the U.S. Geological Survey and U.S. Fish and Wildlife Service look at the science behind the new standard. Both federal agencies were instrumental in the rejection of the prior Bush administration proposals," said Judy Petersen, executive director of Kentucky Waterways Alliance. “Ignoring our pleas, they moved to finalize the new criteria. We felt we had no other option to protect our waterways than to go forward with our legal challenge.”

The change was pushed by Beshear administration officials and approved by a legislative panel earlier this year. KFTC member Ted Withrow testified at one of the hearings that the methodology proposed by state officials is “backed up with old science that was discredited years ago. The science is overwhelmingly flawed.”

In their lawsuit, the groups argue that EPA violated the Clean Water Act by allowing Kentucky to institute a scientifically indefensible standard that fails to protect sensitive wildlife. Second, both citizens and EPA raised concerns about the difficulty of implementing a fish tissue based standard, yet EPA approved this standard based on a vague letter from Kentucky officials about how the new standard would be enforced. The assurances that state officials gave are not backed by state law and are thus unenforceable; therefore, EPA is not entitled to rely upon these assurances in approving the new standard.

"This new fish tissue based standard is just a novel way of letting polluters off the hook for poisoning our fish and waterways," said Eric Chance, water quality specialist for Appalachian Voices. "The main point of this standard is to protect fish, but testing fish tissue can never tell you how many fish the selenium pollution already killed. A fish tissue based standard creates many more problems than just the ones mentioned in the letter EPA relied on to make this decision; I don’t think EPA or Kentucky have seriously thought through how this rule would work in the real world."

This action was filed in the U.S. District Court for the Western District of Kentucky. Sierra Club, Kentuckians For The Commonwealth, Appalachian Voices, and the Kentucky Waterways Alliance are represented in this case by Ben Luckett and Joe Lovett of Appalachian Mountain Advocates.