Pending USEPA Decision on Kentucky’s Proposed Selenium Standard Could Create New Battle in the War on Coal

The State of Kentucky is still waiting on a decision from the United States EPA regarding their proposed state water quality standard for selenium. Kentucky is the first coal producing state to submit a proposed state water quality standard for selenium based on new data that suggests less stringent requirements would adequately protect aquatic life. In taking the initiative, Kentucky is hoping to increase their regulatory control over the enforcement of the clean water act with regard to coal mining.

Kentucky’s proposed standard, which was drafted in consultation with EPA scientists, bases selenium limits on the impacts on aquatic life in a given stream. In order to trigger a violation, selenium would essentially have to be found in fish tissue beyond certain threshold limits. The coal industry strongly supports the proposed change and many scientists agree that this proposed method is far more accurate in determining whether selenium is actually impacting a given stream. Environmental groups argue that such a standard would make selenium limits largely unenforceable and increase allowable selenium discharges exponentially.

Both groups have been lobbying the EPA regarding their positions on the new standard and it is unclear what the EPA’s final decision will be. The Agency technically had 60 days to approve the standard and 90 days to reject it, but both deadlines have passed. It is likely that whichever way the Agency goes, EPA will ultimately have to defend its action in litigation. If Kentucky can successfully implement this new selenium standard, other Appalachian States like West Virginia, Virginia and Ohio will likely follow suit.

Marc Bryson concentrates his practice in the areas of environmental law, administrative law, and energy law. He regularly advises industrial, municipal, and oil and gas clients on matters involving permitting and regulatory requirements for water and wastewater, solid and hazardous waste, and other environmental and regulatory matters.
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