By Taylor Kuykendall

The U.S. EPA is taking comments on recommended federal water quality criteria for selenium with a focus on concentrations found in fish, a change that could disrupt the momentum of environmental groups who have used the current standard in numerous victories over the coal industry.

The EPA published a notice of availability of its external peer review draft aquatic life ambient water quality criterion for selenium in freshwater in the Federal Register on May 14. Selenium is a naturally occurring mineral and an essential nutrient, but is toxic at higher concentrations. Coal mining activity and coal ash from power plants are significant sources of selenium pollution.

Dalal Aboulhosn, the Sierra Club's clean water policy expert, told SNL Energy that the mineral is frequently found in toxic levels in streams below Appalachia surface coal mines.

"We intend to give scientific and real world examples to EPA's request for public comment on its proposed revised criterion for the pollutant selenium," Aboulhosn said. "The practice of mountaintop removal strip mining has proven time and again to be completely destructive of the environment and dangerous to the health of communities living in the shadows of these massive mines."

Operators in West Virginia and Kentucky, the two states where meeting selenium standards has caused the most headaches for coal mining companies, have sought changes to state standards in light of numerous costs imposed fighting environmental lawsuits regarding selenium. Jason Bostic, vice president of the West Virginia Coal Association, said it is "very encouraging" that the EPA is considering a standard that incorporates fish tissue concentrations.

"That's been part of the problem with selenium now going on 20 years," Bostic said. "There's been a recognition within the scientific community, I think, that selenium deserved a different standard versus a water column measurement. We just couldn't get EPA to move in that direction."

Bostic said selenium changes chemical composition very easily and comes in many forms, making it a "very problematic" pollutant for coal operators to treat.

New focus potentially an obstacle to environmentalists

The EPA is required under the Clean Water Act to develop, publish and periodically revise criteria for protection of water quality and human health. The criteria are developed without consideration of economic impact or technological feasibility of meeting the pollutant concentrations in ambient water.

The criteria is not itself a regulation, nor does it impose any legally binding requirements. It is up to states and authorized tribes to adopt their own water quality standards, though state standards require EPA approval.

Legislatures in Kentucky and West Virginia had already taken measures to loosen selenium standards on coal operators. Kentucky recently received EPA approval to alter the way it monitors selenium, and West Virginia officials are studying the impact of selenium pollution in the state to determine whether the standard should be revised.

Kevin Coyne, assistant director of the West Virginia Department of Environmental Protection's Water Quality Standards Program, told SNL Energy in an email that the state has not yet gathered significant data to determine whether the draft fish tissue criteria would be readily achievable by coal operators. Coyne said fish tissue and water quality sampling for the state's study began this spring and will continue through summer.

According to the EPA, selenium is primarily accumulated in fish through maternal transfer to eggs, causing subsequent adverse reproductive effects. The EPA is updating its national recommended criterion to reflect scientific information indicating that selenium toxicity to aquatic life is primarily driven by consumption of selenium-contaminated food and not by dissolved selenium within the water.

The EPA's external peer review draft criterion contains four elements, two based on fish tissue concentrations and two based on water column concentration of selenium. The EPA recommends that states adopt standards that incorporate all four elements, but to also give precedence to the fish tissue elements of the criterion.

Erin Savage, a water quality specialist with environmental advocacy group Appalachian Voices, said that a fish tissue standard would pose numerous challenges for citizens and environmental groups. A fish tissue sample, she said, would require permits for sample collection, be more costly to test and pose other obstacles in initiating citizen enforcement of selenium standards.

"We're really concerned about enforceability of these standards on the ground as well as the ability for citizens to do citizen enforcement of the Clean Water Act," Savage said. "If you set a fish tissue-based standard and you wait until fish have gotten to the point where they have accumulated that much, up to the limit … it's already kind of too late because this has been going on over a long period of time."

Savage said the new standard also could create legal disputes over determining exactly where a fish may have accumulated selenium concentrations. Pinpointing the source of selenium along waterways with multiple outfalls could be particularly challenging.

EPA's draft criteria calls for the concentration of selenium in the dry weight of eggs or ovaries of fish to not exceed 15.2 milligrams per kilogram, or mg/kg. It also calls for the selenium concentration of the whole body of a fish to not exceed 8.1 mg/kg dry weight or for the muscle tissue of the fish to not exceed 11.8 mg/kg dry weight.

The EPA's draft also recommends that 30-day average concentration of selenium in water does not exceed 4.8 micrograms per liter in flowing waters and 1.3 micrograms per liter in standing waters more than once in three years, on average. It also recommends a standard for intermittent concentration of selenium using an equation based on both a water quality measurement, a selenium background measurement and value based on periods in which elevated selenium levels occur.

The draft criterion does not address acute exposure to selenium due to its toxicity being primarily based on bioaccumulation of the mineral.

"If there are rare instances where selenium sources could cause acute effects while attaining the chronic criterion concentrations, a pollution control authority could establish a site-specific acute criterion to protect from those effects," the notice states.

Public comment on the criteria began May 14 and is open until June 13. Scientific views should be submitted to the public EPA docket by June 13.

Selenium obligations a heavy burden on coal operators

In recent years, environmental groups have cited selenium standards in numerous lawsuits, racking up significant court victories against major coal producers.

In March, Alpha Natural Resources Inc. agreed to a historic $200 million settlement, in part to comply with selenium standards. The civil penalty of $27.5 million was the largest ever assessed under Section 402 of the Clean Water Act.

The settlement was not the first hit delivered to Alpha due to noncompliance with selenium standards. The company has lost lawsuits over selenium pollution at one of its coal slurry impoundments and several of its surface mining sites. In 2011, the company reported capital costs of $23 million to treat selenium discharges at certain mine sites.

A coalition of environmentalists pushed Patriot Coal Corp. into a settlement that resulted in requirements for costly selenium treatment at some of its sites. When Patriot later faced Chapter 11 bankruptcy reorganization, the environmental groups conceded a portion of the settlement in exchange for Patriot agreeing to abandon the practice of mountaintop removal coal mining.

A similar deal was struck with National Coal LLC over its selenium obligations.

Arch Coal Inc. and CONSOL Energy Inc. also have incurred significant costs over selenium pollution.