Groups Suing EPA Over Kentucky’s Selenium Standard Add Nutrient Pollution to Complaint

Environmental groups have amended their lawsuit against the federal Environmental Protection Agency over Kentucky’s water quality laws.

Environmental groups including the Kentucky Waterways Alliance and Kentuckians for the Commonwealth filed a lawsuit in December against the EPA for approving Kentucky’s proposed changes to how selenium is regulated in the state’s waterways. Selenium is a naturally-occurring substance that can be released during coal mining and is toxic is large amounts.

Kentucky proposed the new policy in April, which involves using fish tissue to determine whether selenium levels in waterways exceed standards. Here’s what Department for Environmental Protection Commissioner Bruce Scott said at the time:

Scott says the new standards are based on the latest science. Many other states have already gotten rid of the short-term standard, because it’s been overturned by courts, and Scott says the proposed changes will provide more protection for Kentucky waterways.

The proposed long-term, or chronic, standard is a two-tiered approach. If water tests reveal more than 5 micrograms per liter of selenium, there’s mandated fish tissue sampling. Scott says fish tissue is the best way to measure selenium, because the substance bioaccumulates in the food chain.

“And we just aren’t seeing significant issues with selenium,” Scott said. “We do see it, in some isolated situations. And in fact, that’s what this standard is intended to do is to verify that there are problems and to address them.”

Last year, after the EPA approved Kentucky’s plan, environmental groups filed a lawsuit. And late last week, they amended the complaint to include a challenge to changes made by Kentucky in the way nutrients are measured in the water.

Plaintiffs objected to the proposed change to the eutrophication criteria on a number of grounds including that the standards were reactive and appeared to allow nutrient pollution and even algal blooms until the pollution actually had an adverse effect on the aquatic community. DOW adopted the proposed changes over the objections without clarifying whether nutrient pollution would be regulated to prevent eutrophication from occurring and stated that a water body would not be listed as impaired even if it had had algal blooms unless there had actually been adverse effects on water chemistry and the indigenous aquatic community.

Nutrient pollution—or eutrophication—causes algae blooms locally and contributes to problems like the oxygen-poor dead zone in the Gulf of Mexico.

The lawsuit asks for an injunction, and for a judge to find that the state’s water quality standard for selenium and nutrient pollution doesn’t meet the requirements set out in the Clean Water Act.

Erica Peterson

Erica Peterson reports on energy and the environment for WFPL.

@ericampeterson

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