Selenium discharges from coal mines in West Virginia and other states have been the subject of contentious and expensive litigation, regulatory enforcement and EPA permit objections for over a decade, including stringent effluent limitations in NPDES permits and agency- or judicially-mandated construction of sometimes multi-million-dollar selenium treatment systems.¹ The basis for the water quality criteria at the center of these actions, however, has changed with the publication last week of the United States Environmental Protection Agency’s (“EPA”) release of its new final national chronic aquatic life water quality criterion for selenium in freshwater.²  Perhaps it is not surprising that environmental groups noted by the United States Chamber of Commerce for “sue and settle” histories with federal agencies³ are already noting their dissatisfaction with EPA’s action.

EPA has been evaluating chronic aquatic life selenium criteria since at least 2004 when it published a notice of draft selenium criteria⁴ aimed at revising the then-existing recommended chronic criterion of 5 ug/L.  EPA’s new criterion contains two fish tissue-based elements and two water column-based elements: (1) a concentration limit of 15.1 mg/kg, dry weight in the eggs or ovaries of fish; (2) a concentration limit of 8.5 mg/kg dry weight in whole-body of fish, or a limit of 11.3 mg/kg dry weight in muscle tissue of fish; (3) a 30-day average concentration not to exceed 3.1 µg/L in lotic (flowing) waters and 1.5 µg/L in lentic (standing) waters more than once in three years on average; and (4) an intermittent exposure equation.  EPA recommends that states adopt all four parts into their water quality standards. See “Aquatic Life Ambient Water Quality Criterion for Selenium – Freshwater 2016,” EPA 822-R-16-006 (June 2016)

Similar to West Virginia’s new chronic selenium criterion for the protection of aquatic life – approved only days before EPA’s final recommended criterion was published – the fish tissue elements of the criterion are to be given precedence when both types of fish data are available, with fish egg/ovary concentrations superseding whole-body or muscle concentrations where they are measured. The water column values, however, are the applicable criterion element in the absence of fish tissue measurements, such as waters where fish have been extirpated, where physical habitat and/or flow regime cannot sustain fish populations, or in waters with new discharges of selenium where steady state has not been achieved between water and fish tissue at the site. Id.

Some in the regulated community are concerned that the new West Virginia criterion, as well as future changes in other states’ standards as a result of EPA’s new recommended criterion, will in fact be more stringent than the prior 5 ug/L recommended criterion.  Nevertheless, environmental groups are showing their displeasure.

The Sierra Club issued a “response” to EPA’s action, dated July 12, 2016, noting that EPA had “abdicated its responsibility to protect the nation’s waterways . . . from harmful selenium pollution.” See http://content.sierraclub.org/press-releases/2016/07/sierra-club-response-epas-release-selenium-water-quality-criterion.  The Sierra Club’s response focuses on mining in particular, complaining that “EPA has . . . placed responsibility in the hands of state regulators who have already established that they will not miss an opportunity to aid their polluter friends in the mining industry . . ..”  The Sierra Club has an active “Beyond Coal” campaign to shut down the coal industry, regularly sues coal companies⁵ – often under the citizen suit provisions of the Clean Water Act where the Sierra Club can be paid their attorneys’ fees – and is invested in forcing state regulators to include NPDES permit limits for selenium in coal permits and in forcing coal companies to install expensive selenium treatment systems⁶ to meet the 5 ug/L selenium criterion.  Their website currently touts the closure of 236 coal-fired power plants. See http://content.sierraclub.org/coal/dirty-coal.

The Center for Biological Diversity (“CBD”) also issued a news release on July 12, 2016, noting that EPA had included even more stringent water column values in earlier drafts of its recommended chronic criterion for selenium, and complaining that the EPA’s methodologies are out of date.  In particular, the CBD expresses concern that the recommended criteria lacks adequate precautions for the protection of endangered species, and that EPA has not adequately considered concerns of wildlife agencies for the protection of animals higher up the food chain. See here.

Note that the new recommended criterion does not automatically apply to each state.  Instead, states may opt to adopt the final criterion as recommended, adopt a modified criterion to reflect state or site-specific conditions, or adopt a criterion based on scientifically defensible methods subject to EPA approval.  Pursuant to EPA regulations, states will be required to consider this new criterion as part of their mandated triennial water quality standards reviews.

^{1 While the coal industry has taken the brunt of environmental group challenges and EPA oversight in recent years as related to selenium, other industry sectors, including utilities, will be impacted by implementation of this new criterion, and potentially by any future challenges by environmental groups of EPA’s recommended criteria.}

^{2 See 81 Fed. Reg. 45,285 (July 13, 2016); see also “Aquatic Life Ambient Water Quality Criterion for Selenium – Freshwater 2016,” EPA 822-R-16-006 (June 2016).}

^{3 See “A Report on SUE AND SETTLE, Regulating Behind Closed Doors,” U.S. Chamber of Commerce (May 2013),}

^{4 69 Fed. Reg. 75,541 (December 17, 2004).}

^{5 Seehttp://www.politico.com/agenda/story/2015/05/inside-war-on-coal-000002}

^{6 See, e.g., http://content.sierraclub.org/press-releases/2014/12/legal-agreements-require-protection-selenium-pollution-west-virginia-coal}