Today, the Environmental Protection Agency allowed the Kentucky Department of Environmental Protection to change how toxic selenium pollution from mountaintop removal mines is measured for the purposes of determining compliance with the Clean Water Act. Selenium, which causes significant biological damage to fish native to the waters of Appalachia, is a toxic pollutant discharged from valley fills into rivers and streams below mountaintop removal sites. The EPA-backed changes to how Kentucky measures selenium pollution allow the state to rely on an impractical and complicated test of tissue samples from fish rather than the current practice of directly sampling the water discharged below mountaintop removal mines and other selenium sources. EPA’s capitulation gives a free pass to industry and will allow unacceptably high levels of selenium pollution to continue flow into Kentucky’s waterways.
If anything, Obama’s EPA should be cracking down on coal mining and making it harder for the mountaintop removal industry to destroy the mountains and ecology of Appalachia. There is no good reason not to directly sample the water. None. Except that the coal industry doesn’t like it. Because ultimately this isn’t about the poisoning of fish. It’s about the poisoning of people. If the fish are poisoned, the people probably are at higher risk as well. Of course, one expects nothing else from the coal industry; it’s spent the last 125 years treating the people of Appalachia like feudal serfs. But for the Obama EPA to actually weaken testing rules, that I don’t get.
Current selenium limits in states like West Virginia have helped the Sierra Club and other nonprofits force coal companies to hand over millions of dollars in fines and cleanup costs, but those standards are based on older EPA water criteria and guidance that hasn’t been revised in nearly a decade. New data has suggested less stringent requirements would be adequate and the EPA has said it is updating the acute and chronic freshwater ambient water quality standards for selenium, though the agency has yet to act.
Kentucky is now trying to move ahead while the agency drags its feet, having developed its own criteria with help from the EPA and submitted it for federal approval. The proposal would require that high selenium levels be present in fish tissue before triggering a violation, and it would likely be emulated by neighboring states if it gets the green light from the EPA.
In taking the initiative, Kentucky is hoping to put more regulatory control in its own hands on an issue that has been litigated frequently in other states like West Virginia, according to Crowell & Moring LLP partner Kirsten L. Nathanson.
“The environmental groups have been driving enforcement through lawsuits,” Nathanson said. “Kentucky is trying to find an instructive solution to these issues and avoid some of these ad-hoc enforcement actions by taking affirmative control of its regulatory program for selenium.”
Industry has always preferred state-led regulatory programs because the states are far easier for industry to control than the feds. Politicians come cheaper and they tend to be much friendlier to local industry.
A very disappointing decision.