The Virginia Coal and Energy Alliance ("VCEA"), has petitioned the State Water Control Board to take action on EPA's Freshwater Aquatic Life Ambient Water Quality criteria for selenium ("EPA selenium criteria"). The EPA selenium criteria were finalized and published in the Federal Register on July 13, 2016, and include four elements - two that are fish tissue-based and two that are water column-based. The updated EPA selenium criteria reflect the latest scientific knowledge at the national level and provide a more up-to-date evaluation of impacts from selenium than Virginia's current surface water quality criteria at 9 VAC 25-260-140. Virginia's acute and chronic selenium criteria are over 25 years old, do not reflect the latest scientific information, and are unnecessarily stringent to protect aquatic life. As long as the outdated and obsolete criteria remain on the books, we are concerned that our members will be placed in peril of unreasonable compliance obligations, misguided enforcement actions and baseless lawsuits. At DEQ's July 20, 2016 Regulatory Advisory Panel meeting to address "carry-over" issues from the last Triennial Review of Water Quality Standards, VCEA representatives alerted DEQ to the availability of the new EPA selenium criteria and asked that selenium be addressed along with the other carry-over issues. VCEA now formally requests, pursuant to Va. Code § 2.2-4007, that the existing surface water quality criteria for selenium be amended to incorporate the EPA selenium criteria, subject to appropriate tailoring for Virginia's waters and fish species. The Board is empowered to adopt water quality standards in the Commonwealth. Va. Code § 62.1-44.15. Virginia is required to review applicable water quality standards and as appropriate, modify and adopt federal standards. 33 U.S.C. § 1313(c)(1); 40 C.F.R. § 131.20(a). EPA has recently published technical support materials to assist states in adopting the new selenium criteria, including guidance on monitoring fish tissue, water quality assessment and listings under section 303(d) of the Clean Water Act, and implementation of the criteria in NPDES permits. These technical support materials should provide a sufficient basis to guide adoption of the EPA selenium criteria in Virginia, subject to modifications that reflect the unique characteristics of Virginia's waterbodies and fish species. We note that EPA's criteria include a hierarchy with a stated preference for the use of fish tissue data, where available, in evaluating compliance with the criteria. The criteria provide that where fish tissue data are available, the fish tissue criteria supersede the water column criteria. This same hierarchy should be adopted and the fish tissue criteria should be allowed to prevail over any water column criteria where fish tissue data are available. Importantly, the Board will need to consider state- or regionally-specific tailoring of the fish tissue values set by EPA. EPA's data set for fish tissue covers 10 fish genera for chronic toxicity for fish reproductive effects and seven fish genera for non-productive effects. Some of these species do not occur in some or all of Virginia's waters. As a result, we believe that the fish tissue criteria will need to be adjusted so that they are reflective of, and protective of, the fish species that are actually present. In particular, we ask that regional criteria specific to the coalfields region of the Commonwealth, given its unique geography, geology and hydrology, be considered. Further, a translation procedure, consistent with Appendix K in the EPA selenium criteria document, needs to be adopted to provide a process for use by dischargers seeking site-specific criteria. Whether to deviate from EPA's guidance in the technical support document "FAQs: Implementing the 2016 Selenium Criterion in CWA Section 303(d) and 305(b) Assessment, Listing, and TMDL Programs," as it relates to fishless waters will also need to be evaluated. EPA's guidance counsels that where no fish tissue data are available because waters have insufficient in-stream habitat and/or flow to support a population of any fish species on a continuous basis, or waters that once supported populations of one or more fish species but no longer support fish, the water column values are the applicable criteria and the water column data are sufficient to determine whether the criteria have been met. We urge rejection of EPA's approach to fishless waters. Where a waterbody does not have an actual, existing aquatic life use, the use simply does not apply. In that case, the criteria adopted to protect such a use also do not apply. We submit that this is consistent with the longstanding approach to uses and criteria in Virginia. By way of simple example, the "Public Water Supply" use only applies where a public water supply is shown to be present. In the absence of a documented public water supply, neither the use nor the corresponding "PWS" criteria apply. Finally, given the time it is likely to take to implement any change in the selenium criteria, and the need for permittees to appropriately adjust their operations to comply with any new limits, authorizing longer term compliance schedules for permittees will need to be considered, since compliance with criteria-based limits may in some cases take more than five years.

The Board received the petition at its meeting on May 17, 2017.  The Board is, in accordance with the provisions of the Administrative Process Act, announcing a public comment period on the petition.  The comment period begins on June 12, 2017 and ends on July 5, 2017.  After close of the comment period comments will be reviewed and staff responses and a recommendation on initiating a rulemaking will be prepared and presented to the Board for their consideration at a regular meeting of the Board.

Take no action

The State Water Control Board, at its meeting on December 6-7, 2017, based on a report from the Department of Environmental Quality (DEQ), voted not to intiate a rulemaking to amend the Selenium criteria found in the Water Quality Standards and to await issuance of the final technical support guidance documents from the U.S. Environmental Protection Agency (EPA).  DEQ advised the Board that EPA's technical support documents and implementation guidance are as important as the criteria themselves; and it could be premature to initiate a rulemaking without the documents and guidance. The "How" to protect aquatic life from a toxicant is as vital as the "What" to allow as acceptable levels of the contaminant.  DEQ reported that EPA developed four technical support documents that cover Water Quality Standards adoption, NPDES permitting, waterbody assessment and 303(d) (Impaired Waters) listing, and fish tissue monitoring to assist in implementation and held a public comment period from October 13, 2016 to February 2, 2017.  However, they have not been finalized by EPA for use by the states and it is unknown when that final action will occur.  In addition, staff advised the Board that Virginia's stakeholders want and should receive as much certainty as possible on implementation methods along with revised standards; recent examples are proposals for amended bacteria criteria (data period to generate a geometric-mean) and ammonia criteria (justification for extended compliance schedules, beyond permit term).