Environmentalists sue over new water pollution standard in Kentucky

bestep@herald-leader.comDecember 13, 2013 

Federal regulators erred in approving a new standard in Kentucky for measuring a pollutant from surface mining, four environmental groups have claimed.

The standard will not adequately protect fish and other wildlife in streams from selenium pollution, according to a lawsuit the groups said they filed Friday in U.S. District Court in Louisville.

The complaint against the Environmental Protection Agency seeks to bar the state from putting the standard into place.

Environmental groups said in a news release that the rule at issue is similar to one turned down when President George W. Bush was in office.

"There's simply no scientific or legal justification for this EPA to approve a standard worse than one rejected by the Bush administration," Alice Howell, chair of the Sierra Club's Cumberland Chapter of Kentucky, said in a statement.

The groups suing the EPA are Kentucky Waterways Alliance; the Sierra Club; Kentuckians for the Commonwealth; and Appalachian Voices.

Tom FitzGerald, executive director of the Kentucky Resources Council, is one of the attorneys representing the groups.

Selenium is an element that can be released into streams during surface mining, road-building and other activities involving excavation.

At high enough levels, selenium can cause reproductive problems and deformities in aquatic life, and affect other animals.

The EPA last month approved a proposal by Kentucky regulators to change the way they monitor compliance with long-term selenium limits in streams.

The new approach would measure concentrations of the element in fish tissue, rather than in water, to determine if selenium discharges were within required limits.

Environmental groups argue that approach is wrong because it would exempt streams where there are no fish, but where there may be other aquatic life. The rule wouldn't protect salamanders and crayfish, for instance, the lawsuit said.

The method of sampling also would not adequately protect some types of fish more sensitive to selenium than others, the lawsuit said.

The lawsuit also alleged EPA approved Kentucky's new standard improperly.

The complaint seeks an order that requires EPA to put a different selenium rule in place in Kentucky.

Spokesman Dick Brown said the state Energy and Environment Cabinet had no comment on the lawsuit.

Environmentalists have charged Kentucky officials drafted the new rules to shield the coal industry from lawsuits claiming selenium from mining had polluted streams.

"This new fish-tissue based standard is just a novel way of letting polluters off the hook for poisoning our fish and waterways," Eric Chance, with Appalachian Voices, said.

Kentucky regulators have said those claims are not true.

The rules are based on sound science and will protect the state's streams, Bruce Scott, commissioner of the state Department for Environmental Protection, said in April when a legislative panel approved the change.

Selenium has become an issue in environmentalists' fight against mountaintop mining.

In one notable case, environmental groups won an agreement from Patriot Coal Corp. to stop mountaintop removal mining in West Virginia and limit production from surface mines in a lawsuit that involved selenium contamination.

Bill Estep: (606) 678-4655. Twitter: @billestep1

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