Kentucky coal group part of settlement over selenium issues in Kentucky

Parties including the Kentucky Coal Association and the state of Kentucky filed an Oct. 30 notice with the U.S. District Court for the Western District of Kentucky of a settlement with environmental groups over Clean Water Act issues related to coal mining.

The plaintiffs in this lawsuit, which was first filed in 2013 and has since been amended twice, are the Kentucky Waterways Alliance, Appalachian Voices, Sierra Club, Kentuckians for the Commonwealth, the Center for Biological Diversity and Defenders of Wildlife. The intervenors are the Kentucky Chamber of Commerce, Kentucky Coal Association and the state of Kentucky. The defendants are U.S. Environmental Protection Agency officials Gina McCarthy and Heather McTeer Toney.

“The Parties, having reached a settlement of the case, request that the Court remand, without vacatur, two aspects of EPA’s November 15, 2013 approval of amendments to Kentucky’s water quality standards regulations,” said trhe Oct. 30 joint filing by all of these parties. “In addition, the Parties collectively request that the Court stay this action until March 15, 2016, to allow EPA sufficient time to complete its obligations under the Parties’ agreement.”

“On August 13, 2014, Plaintiffs filed the Second Amended Complaint, which alleges that EPA’s November 15, 2013 approval of changes to Kentucky’s water quality standards regarding selenium, eutrophication, and nutrients contained in Kentucky Administrative Regulations 401 KAR 10:001 Section 1 (30) and 401 KAR 10:031 Section 6 (1) was inconsistent with the federal water quality standards regulations and the Clean Water Act; (2) was arbitrary, capricious and otherwise contrary to law, and (3) was made without the requisite consultations under Section 7 of the Endangered Species Act.”

The filing said that talks for a deal had been ongoing for months. “The settlement discussions continued productively through the summer of 2015 and have culminated in a Settlement Agreement… Under the Settlement Agreement, EPA has committed to complete a series of actions that, the Parties agree, will satisfy the Agency’s obligation to consult (formally or informally) under the Endangered Species Act and will culminate in the agency taking action to either affirm the Agency’s approval decision or to disapprove the relevant portions of Kentucky’s criteria.”

Specifically, the parties have agreed that a remand is appropriate with respect to the following parts of EPA’s November 2013 decision:

  • Approving amendments to Kentucky’s water quality standards regulations adopting a revised definition of eutrophication and revised narrative nutrient criterion; and
  • Approving amendments to Kentucky’s water quality standards regulations that 1) removed Kentucky’s water column chronic criterion for selenium of 5.0 μg/L, and 2) adopted revised chronic water quality criteria for selenium of 8.6 μg/g dry weight of whole fish tissue or 19.3 μg/g dry weight of fish egg/ovary tissue.

Upon EPA’s completion of those actions, the parties have agreed to file a joint stipulation to dismiss the case with prejudice.

Selenium in small quantities is actually healthy, but in large quantities from sources like mine water runoff is considered toxic to humans and other forms of life (including fish and insects within a stream ecosystem).

About Barry Cassell 20414 Articles
Barry Cassell is Chief Analyst for GenerationHub covering coal and emission controls issues, projects and policy. He has covered the coal and power generation industry for more than 24 years, beginning in November 2011 at GenerationHub and prior to that as editor of SNL Energy’s Coal Report. He was formerly with Coal Outlook for 15 years as the publication’s editor and contributing writer, and prior to that he was editor of Coal & Synfuels Technology and associate editor of The Energy Report. He has a bachelor’s degree from Central Michigan University.