KWA Still Concerned with Proposed Selenium Change

Back on February 5, KWA found out about Kentucky Division of Water’s proposed change to the current selenium water quality standard to protect aquatic life.  Our initial reaction was one of complete surprise, and a little bit of aggravation, suspicion, and hope that it was not as bad as it looked.  We put together a webpage, sent out an action alert, and worked with partners on comments to submit.

In the past week, we attended a couple briefings with KDOW, where the staff and administrators presented the scientific basis for the proposed changes, and reiterated their opinion, in front of several industry representatives no less, that they could no longer legally defend the existing selenium standards for aquatic life.  The meeting content was helpful to us.  It gave us a better idea, by talking with various individuals, that DOW has certainly worked hard on this proposal.  This is a difficult issue to grapple with, and we respect DOW’s efforts to make an attempt to update the selenium standard.

Having said that, KWA still has some outstanding concerns related to the proposed change.  First, any significant change to water quality standards requires a full public notice period of 30 days, so that the public is able to be educated on the proposal, and submit comments.  Typically, this also includes a public hearing.  DOW did propose to remove the current selenium acute standard as part of their triennial review last Fall, but this represents a completely different proposal.  This also includes a change to the chronic criteria, which also represents a significant change.  Both of these together should have resulted in an immediate 30-day public notice period.  Instead, the Energy and Environment Cabinet and DOW public noticed the change on February 12th and plan to accept comments until March 1, which is a total of 17 days.

We would have appreciated some contact prior to the proposal, so that our partner groups and scientists could work with DOW and produce a more defensible standard.  Additionally, this process has prevented any true peer review of the proposed standard.

The other major issue we have, in addition to the process, is that the actual proposed standards–to change the acute limit from 20 parts per billion (ppb) to 258 ppb, and the chronic limit from 5 ppb to using that as a trigger to do fish tissue testing, which can’t exceed 8.58 ppm–is still not defensible.  Why?

Well, based on our understanding,  DOW’s proposed acute limit of 258 ppb is the same number produced by EPA in 2004, which was heavily criticized by the science community.   Our understanding is that the current acute limit of 20 ppb, and the process under which that was established over 20 years ago, is not scientifically defensible–but, the goal of the Clean Water Act is to eliminate pollution, not permit it at levels that may ultimately approach impairment.  Additionally, an acute limit that high does present a chronic problem as well.  Research suggests short pulses of selenium into the water column around 40 ppb can have lasting chronic impacts.  This relationship, between acute levels and chronic levels, does not appear to have been accounted for, from our understanding.

With the chronic numbers, to DOW’s credit, the methodology used for determining the fish tissue limit utilized a more protective metric.  However, we are concerned about going from the 5 ppb as a limit, to using it as a trigger for doing fish tissue testing for several reasons.  In general, we’d prefer to retain the use of a water column based limit for selenium.  It is more easily enforceable for specific permitted facilities.   On the other hand, fish and other aquatic species travel up and down stream, and are not present in some streams for various reasons, so it makes it much more difficult to enforce a fish tissue standard in certain waterways, where several permitted discharges contain selenium–even if fish tissue is a better indicator of actual biological impacts.

A second concern with the chronic numbers is that, if using a water column trigger, rather than a definitive limit, that trigger must be much lower, in order to be sufficiently protective, in our opinion.  The existing limit of 5 ppb, while in our opinion is not restrictive enough, has been in place since the 1980’s.   It certainly needs to be updated.   If the water column number were lower, and it was surpassed, it would then trigger fish tissue testing earlier, which would provide more assurance that fish are not being impacted.  Based on our understanding, chronic impacts can occur with water column numbers around 2-3 ppb, and we’d suggest using that for a trigger, if necessary.   However, we do continue to believe, as mentioned already, that a water column based limit is more enforceable, rather than a trigger.

Finally, we are concerned, generally, with the issue of selenium in the environment.  Quite honestly, the main selenium problem is from surface coal mining operations that involve exposure of various minerals that include selenium.  Usually, this becomes most problematic in the form of valley or hollow fills, which place a variety of minerals and material directly into stream beds.  Once these fills are in place, and they are contributing selenium into the environment, there is nothing to stop it at that point.  This is the fundamental problem.  If these standards do not prevent the practice of valley fills, then its fairly certain there will be selenium violations–after all, there already are selenium violations of the chronic limit.  Selenium will not go away.  It is bioaccumulative, and stays in the sediments, in the aquatic vegetation, macroinvertebrates, and fish.  If you don’t restrict it to extremely low limits to begin with, and prevent those limits from being breached, then eventually, it will pose an aquatic life hazard.

At this point, implementation and enforcement is still an outstanding concern.  According to DOW, they are considering the implementation aspects of this, but intend to work those details out after the regulation is passed.  In our opinion, these go hand in hand–there needs to be at least a general consensus about implementation, prior to passing the regulation.  We’re highly concerned that, if/after this is passed, the implementation procedures will be even more problematic than the proposed standards.

Our goal follows the Clean Water Act, and the Clean Water Act has held a goal of eliminating the discharge of pollution in our waterways, in order to restore and maintain the chemical, physical, and biological integrity of the Commonwealth’s waterways.  We encourage the DOW to see this goal more clearly, and propose a revised standard that more sufficiently attempts to reduce pollution, rather than permit it until it becomes a problem.