The West Virginia Department of Environmental Protection’s (“WVDEP”) proposed rule revisions for consideration during the 2016 regular legislative session are now available on the WVDEP website, including long-awaited revisions being proposed to the state’s existing aluminum and selenium water quality criteria.

The state’s water quality standards rule, 47 C.S.R., Series 2, is proposed to be revised to include hardness-based criteria for aluminum and fish concentration criteria for selenium. Revisions are also proposed to add two new variances from standards on behalf of the WVDEP’s Division of Land Reclamation.

The current aluminum criteria for aquatic life, which has been the subject of much debate over the course of the last decade or more, was most recently revised from a total aluminum criteria to a dissolved aluminum standard. The total aluminum numeric criteria was challenged in years past for lacking adequate scientific basis, both as to the numeric values selected and because it was a total metal standard instead of a dissolved metal standard. The dissolved aluminum values are more reflective of potential impacts to aquatic life.

The new proposed revisions to the aluminum criteria would further refine the state’s water quality criteria to include a hardness based formula that would apply where pH is between 6.5 and 9.0. This proposed revision is based on evaluation by the agency and is similar to hardness-based criteria adopted by other states and approved by United States Environmental Protection Agency (“EPA”). In its summary of its proposed rules, the WVDEP states that the hardness based equations cannot be used for waters not meeting the pH requirements as well as certain hardness requirements.

West Virginia’s current selenium criteria for the protection of aquatic life includes a water column-based acute value of 20 ug/l and a chronic value of 5 ug/l for the protection of aquatic life, as well as a 50 ug/l value for the protection of human health. These criteria have been the subject of debate for over a decade as well, with the EPA losing a legal challenge regarding its then-recommended acute criterion in 1997 and then announcing plans to propose revised chronic aquatic life criteria in 2004 (which have yet to be finalized for public review and comment). Selenium discharges have been the subject of agency actions and guidance and multiple third party lawsuits directed at the coal mining industry in the state.

While the EPA continues evaluation of new federally recommended criteria, West Virginia is finally moving forward with a proposed revision to the state’s chronic criterion based upon selenium concentration in fish. The proposed chronic criterion will use a four-day average value of 20 ug/l based upon fish egg/ovary selenium concentrations, and a four-day average value of 8.3 ug/l based upon fish whole body concentrations. The proposed rule also retains the water column criterion of 5 ug/l, but states that the proposed whole body fish concentration criteria overrides the water column criteria of 5 ug/l, and that the egg/ovary concentration values override both the fish whole body and water column concentration values.

In the WVDEP’s summary of its proposed rules, the agency states that the added fish concentrations may be assessed where “the existing water column limit is exceeded” to make a determination regarding an exceedance. It further explains that its proposed approach “is consistent with methods recently drafted by EPA that are expected to be implemented as recommended nationwide criteria.”

Implementation of the proposed selenium criteria and review of proposed WVDEP guidance on implementation will be important, as the fish tissue-based standards, and methods of translating such criteria into specific permit conditions and effluent limitations, could prove challenging for both the agency and permittees.

Numerous permit holders and regulated entities have the potential to be directly impacted by the proposed changes. A public hearing on the rule is schedule to be held at the WVDEP’s Cooper’s Rock Training Room at 6:00 p.m. on July 21st. Public comments will be accepted until July 31, 2015.