Over ten years after the first coal NPDES permit in West Virginia included a selenium condition, over ten years after the United States Environmental Protection Agency (“EPA”) first proposed to revise its recommended aquatic life criteria for selenium, after years of litigation challenging permits for including – or not including – selenium effluent limitations, and after years of study by the West Virginia Department of Environmental Protection (“WVDEP”), EPA and others, the EPA has approved the state’s revised selenium standard that was recently finalized in the June 2016 Special Session of the West Virginia Legislature. 

By letter dated June 24, 2016, the EPA approved WVDEP’s water column and fish-tissue based criterion for the protection of chronic aquatic life impacts, and its deletion of an acute aquatic life criterion.  The approval is subject to completion of the EPA’s consultation process with the United States Fish and Wildlife Service (“USFWS”) as required by the Endangered Species Act (“ESA”),¹ but appears to authorize the WVDEP to proceed with implementation of the new selenium criterion.  EPA is engaging in the required ESA consultation, and to that end has asked for a response from the USFWS to the EPA’s biological evaluation related to approving West Virginia’s new selenium criteria by August 30, 2016.

Selenium is a naturally occurring element commonly found in rocks and soils that can be associated with numerous activities, from coal mining to agriculture, and is considered to be a bioaccumulative substance, with aquatic life (or wildlife) exposure occurring primarily based on diet.

The new criterion is based upon EPA’s Draft Aquatic Life Chronic Criterion for Selenium in Freshwater (July 2015, see EPA Docket EPA-HQ-OW-2004-0019-0408 at www.regulations.gov).  It retains a water column criterion of 5 ug/l,^[1] but also adds whole-body fish concentration criteria (8.0 ug/l or 11.3 ug/l, depending on method of whole body measurement) that generally take precedence over the water column criterion, and a fish egg/ovary concentration criterion (15.8 ug/l) that generally takes precedence over any whole-body or water column numbers.

We understand that the WVDEP is developing guidance on how this complex new criterion will be implemented in permits.  Depending on the approach taken by WVDEP in applying the new criterion, some permittees fear that a seemingly more flexible approach to regulating selenium discharges will in fact prove more stringent.

While the coal industry has been impacted significantly by implementation of the old selenium criteria, including stringent effluent limitations in NPDES permits and the agency or judicially-mandated construction of sometimes multi-million-dollar selenium treatment systems, other industry sectors, including utilities, will be impacted by implementation of this new criterion.

At WVDEP’s request, EPA has bifurcated its review and approval of the state’s water quality standards package which contained the selenium criteria change as well as other changes, including a proposed revision to adopt a hardness-based aluminum criteria.  The proposed revision to the aluminum criteria is still under review by the EPA and has not been approved.

¹ _{EPA included as an attachment to its approval letter its “Biological Evaluation of West Virginia’s Selenium Criterion for the Protection of Aquatic Life” dated June 24, 2016, together with a cover letter forwarding the document to the USFWS.  In its cover letter, EPA concludes that its “approval will have no effect, or may affect, but is not likely to adversely affect federally-listed threatened or endangered species, and their critical habitat, in West Virginia.”  See Letter from EPA to USFWS dated June 24, 2016.  We are reviewing the EPA’s biological evaluation in greater detail and will provide updates here as appropriate.}