Virginia water board OKs pilot for new way to test selenium

The Clinch River in Scott County, Virginia. (Sarah Vogelsong / Virginia Mercury)

Virginia water regulators are moving forward with plans to allow a coal company to use an alternate method of testing for selenium discharges in Buchanan County waters as a way to consider whether the change should be made statewide.

Virginia’s Department of Environmental Quality, which oversees water testing, proposed the pilot approach after concerns about a broader change. The issue first arose from a request by Clintwood JOD, a Kentucky-based mining company that operates 15 mines in Southwest Virginia, to use fish tissue monitoring for selenium in waterways into which its operations discharge. The Virginia Department of Energy subsequently asked DEQ to consider changing the method statewide, with special consideration for coal-producing areas.

Selenium discharges from Southwest Va. mine trigger debate over testing

Several environmental groups oppose the proposed fish tissue method, despite the U.S. Environmental Protection Agency’s preference for it, saying it’s more cumbersome than water sampling and less accurate.

While Bryant Thomas, manager of DEQ’s Office of Ecology, acknowledged during an Aug. 23 meeting of the State Water Control Board that the EPA recommends fish tissue testing, he said there are “some challenges with implementation.”

Selenium is a natural element found in the Earth’s surface that is released through the mining process. Consumption of selenium is beneficial in small amounts, but ingesting too much of it can lead to fatigue, nail and hair damage and neurotoxic effects.

In Virginia, reports to state regulators show mines now operated by Clintwood JOD have released high levels of selenium into waterways since 2015, with the Laurel Branch Surface Mine being a particular problem. In February, that mine discharged more than double Virginia’s allowed amount.

In 2016, Laurel Branch was put under a state compliance schedule that required the installation of technology to bring the selenium discharges under control. After Clintwood JOD took ownership in 2021, it became responsible for following the compliance plan, and earlier this year the company asked regulators to switch from water sampling to fish tissue monitoring to assess selenium levels within the Knox Creek watershed.

Virginia’s method of testing water directly for selenium is over 30 years old, Clintwood JOD argued in its request. Furthermore, it said, “EPA’s recommended criteria reflect the latest scientific knowledge and provide a more updated method of evaluating selenium impacts to surface waters.”

EPA’s criteria for selenium monitoring include both direct water testing and fish tissue methods. The EPA has said the fish testing method is preferred, but left it to the states to decide which one to use. Both Kentucky and West Virginia have since adopted the newer method.

In Virginia, a DEQ panel in 2017 considered switching the state’s approach to the fish tissue method but elected not to because federal guidance on how to implement the process was then still in draft form.

At the Aug. 23 meeting, Thomas said that guidance remains in draft form.

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Additionally, once selenium can be detected in fish tissue, “there is already an impact to the resource,” Thomas said. “Normally our water quality programs are designed and established to prevent that level of impact.”

However, DEQ staff said they were willing to try out the fish tissue approach in the limited area of Knox Creek where Clintwood JOD mines operate.

“While the criteria are protective as recommended, I would argue equally as important to the criteria themselves is how do you implement them,” Thomas said. “Really looking at it on a limited scale that would be more consistent with those downstream states would allow Virginia a chance to pilot this … and possibly, in the future, expanding it geographically statewide.”

Numerous environmental consulting, engineering and coal producers supported the change, saying in comments to DEQ it would provide regulatory flexibility for the coal industry.

However, environmental groups including Appalachian Voices, Southern Appalachian Mountain Stewards and the Sierra Club’s Virginia chapter argued the switch would institute a more complicated process and detect selenium too late to halt its impacts.

“Why would we even change that criteria in the first place, even in these localized areas?” State Water Control Board member Ryan Seiger asked during discussion of the proposal Aug. 23.

Thomas said the pilot could include further study of an appropriate selenium limit or a potential threshold that would indicate a level of concern that would not require action.

“There are some things that can address it that would be appropriate to consider,” he said. “But your question and point is right on. It’s one of the many challenges of working with tissue as an endpoint.”

The 5-1 vote by the board initiates a regulatory review period that is expected to last 18 to 24 months and will include public comment.

After the meeting, Appalachian Voices said it was disappointed with the decision but relieved the change wouldn’t be made statewide.

“For years, this company has released mine water containing toxic levels of selenium into Knox Creek and its tributaries,” said Willie Dodson, a coordinator for the group. “The board’s action today will further enable this company to continue its pattern of pollution.”

Attempts to reach Clintwood JOD for comment were unsuccessful. The company did not speak during the Aug. 23 meeting.

This story was corrected with when the Statewater Control Board met. The board met on Aug. 23

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by Charlie Paullin, Virginia Mercury August 30, 2023

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Charles Paullin covers energy and environment for the Mercury. He previously worked for Northern Virginia Daily in the Northern Shenandoah Valley and for the New Britain Herald in central Connecticut. An Alexandria native, Charles graduated from the University of Hartford initially wanting to cover sports. He's received several Virginia Press Association awards for his coverage of crime, local government and state politics.