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EPA moves forward with selenium criteria that could slow groups fighting coal

The U.S. EPA has taken a step forward in updatingrecommended safe fresh water concentrations of selenium, an element oftenunearthed during surface coalmining.

The criteria are used as a standard for states to determinehow they should set their own water quality standards. Where the EPA previouslysuggested states measure selenium concentration in the affected bodies ofwater, it now recommends tissue-based measurements from fish, fish eggs,ovaries and more.

The regulation is scheduled to be published in the FederalRegister on July 13. According to the notice, the new standard reflects "thelatest scientific information" indicating that selenium toxicity to aquaticlife is primarily based on consumption of selenium-contaminated food as opposedto dissolved selenium in the water.

Selenium, a nutritionally essential element, is toxic athigher concentrations and can bioaccumulate in an organism, causing chronic exposureto be of particular concern. Chronic exposure has been shown to lead toreproductive impairments and other effects such as impacts on juvenile growthand mortality.

Selenium lawsuits environmentalists have against coal companies andsubsequent settlementshave proven costly tothe industry. Mining companies that were operating in Appalachia, such asPatriot Coal Corp.,Alpha Natural Resources Inc.,CONSOL Energy Inc.and Arch Coal Inc.all faced challenges from citizen selenium lawsuits.

Environmentalists have expressed concern that tissue-basedsampling could make it more difficultto initiate citizen lawsuits.

In a July 12 statement, the Center for Biological Diversitydescribed the standard as a "gift to industry."

"Theseselenium standards are a step backward for water quality and little more than agreen light for industry to keep polluting our rivers and streams," said BrettHartl, endangered species policy director at the center.

In 2014, when draft criteria was published, an official withthe West Virginia Coal Association told S&P Global Market Intelligence thatit was "very encouraging" the EPA was considering a standardincluding fish tissue concentrations.

"There's been a recognition within the scientificcommunity, I think, that selenium deserved a different standard versus a watercolumn measurement," West Virginia Coal Association Vice President JasonBostic said at the time. "We just couldn't get EPA to move in thatdirection."