The Richmond Register

Local News

April 24, 2013

Some lawmakers question selenium regulation

Lawmakers

FRANKFORT — Some lawmakers believe the Cabinet for Energy and Environment deliberately tried to confuse them about a controversial new regulation governing how much selenium can be discharged into Kentucky streams by mining operations.

At least a couple of them also wonder why David Nicholas, the legislative staff assigned to the Administrative Regulations Review Subcommittee, didn’t inform them he is the father-in-law of Bruce Scott, the Cabinet’s Commissioner of Environmental Protection who urged approval of the regulation.

On top of that, committee members didn’t realize when the Kentucky Chamber of Commerce urged passage of the amendment that James Booth, chairman of Booth Energy, which manages major coal operations in three states, is chairman of the chamber board.

“As we went through that process, something just didn’t feel right,” said Rep. Tommy Turner, R-Somerset, the committee member who asked the Cabinet at the committee’s April meeting to defer the regulation a second time so lawmakers could spend yet more time trying to understand its effects. The cabinet declined to wait any longer and the subcommittee passed the regulation 5-1 with Turner and committee co-chair Rep. Johnny Bell, D-Glasgow, passing.

Turner suggested the cabinet deliberately confused the committee and backed lawmakers into a corner where they had to choose between an acute selenium standard some felt was unacceptably high — or no acute standard at all.

But Scott said “there was absolutely no intent or effort by the agency to place the committee into a corner.”

Both Scott and Legislative Research Commission Director Bobby Sherman also adamantly rejected the notion that Nicholas’ family relationship to Scott represented a conflict of interest or influenced Nicholas’ counsel to the subcommittee.

Chamber President David Adkisson says Booth had no input into the chamber’s position on the regulation.

But those denials aren’t enough to ease concerns by Turner, Bell or Sen. Perry Clark that lawmakers were forced to make an untenable choice with too little information and under an unnecessary deadline.

Clark voted against the measure. Turner and Bell passed after five other lawmakers voted for it, providing the minimum number of votes for passage.

Sen. Ernie Harris, R-Crestwood, who co-chairs the panel with Bell, voted for the measure but said later he was also unaware of the relationship between Scott and Nicholas. He said it was unlikely he would have changed his vote had he known. Sen. Sarah Beth Gregory, R-Monticello, also voted for the measure.

Rep. Bob Damron, D-Nicholasville, Sen. Joe Bowen, R-Owensboro, and Rep. Jimmie Lee, D-Elizabethtown, expressed concern about the complexity of the science and the difficulty in determining the correct vote in the public interest. But each said at some point lawmakers must rely on the knowledge and good faith advice of the cabinet and voted yes.

The process which led to the controversial vote was lengthy, is often misunderstood and the substance of the regulation complicated.

Selenium is a chemical found in mineral ores and in trace amounts in the cells of all animals — but it is toxic in larger amounts. It is exposed during excavation or explosions of rock and ore, including surface mining operations and the mining practice known as mountaintop removal.

Kentucky measures the presence of selenium in waterways through both an “acute” (immediate) and a “chronic” (ongoing, cumulative) standard. Last year, the federal Environmental Protection Agency asked states to re-write acute standards based on new science and the cabinet, after reviewing numerous studies, advertised a proposed new acute standard and sought public comment.

But after the public comment period ended, the cabinet amended the proposal – which is legal but which produced howls from environmental groups who claimed the much higher acute standard is toxic and unenforceable and they claimed the cabinet “cherry-picked” scientific studies to produce the result it desired.

When Scott and the cabinet presented the amendment to the subcommittee in February, environmental groups objected to the process and the new acute standard, 10 times higher than the old standard.

Under the proposed regulation, when the higher acute threshold is detected in the water it would not automatically trigger a sanction against the alleged polluter. Instead, the state would test tissue samples from fish to determine if they contained toxic levels of selenium.

But Ted Withrow, a retired former decorated employee of the cabinet’s Division of Water and now a member of Kentuckians for the Commonwealth, told the committee in February: “If you approve this new acute standard, there won’t be any fish in those streams to test.”

The subcommittee asked Scott and the cabinet to defer the regulation until it could hear the concerns of environmental groups and try to address them before bringing the regulation back before the committee.

But after conducting two “stakeholder meetings,” the cabinet brought back basically the same regulation with some technical revisions to the subcommittee in April.

Normally, the Administrative Regulations Review Subcommittee does just what its name implies — it reviews proposed regulations but has no power to prevent their implementation. It can only advise the full General Assembly that it should overturn such regulations — something which rarely happens.

But when the cabinet amended the proposal after the public comment period, it gave the subcommittee an opening — the subcommittee can reject such an amendment with four votes.

Bell, Turner, and Clark planned to vote against the amendment and believed at least two other committee members might join them. If just one did, the amendment would die.

But when time for the vote arrived, Damron and Scott advised the committee that the original regulation had no acute selenium standard at all and if the committee rejected the amended regulation the original proposal would be implemented.

Bell challenged Scott’s interpretation, claiming the standard would revert to the current standard whileTurner made a motion to defer the regulation again.

But at that point, Nicholas confirmed Scott’s and Damron’s interpretation and said the regulation must be voted on unless the cabinet agreed to defer.

Scott said the regulation had been deferred long enough and declined to defer it again.

Turner, an avid hunter and fisherman, reacted angrily.

“We’re talking about the health of the people of Kentucky and our aquatic resources,” Turner said. “It shows me the lack of respect (the cabinet has) for the legislators and for the people of Kentucky when an issue this important is dealt with this way.”

Bell also admonished Scott, promising to monitor the effects of the new regulation so long as he’s in the legislature.

“I hope and pray that’s what’s been done here today has been done with sincerity and from what you know to be the right thing because a lot of people sitting here in this audience are depending on you to protect them.”

The regulation must still be approved by the federal EPA before it can take effect.

Ronnie Ellis writes for CNHI News Service and is based in Frankfort. Reach him at rellis@cnhi.com. Follow CNHI News Service stories on Twitter at www.twitter.com/cnhifrankfort.

1
Text Only
Local News
  • 7-29 YMCA-Schools.jpg YMCA, county district to provide after-school care

    The Telford YMCA is partnering with the Madison County School District to provide after-school child care for kindergarten and elementary students.
    YMCA Executive Director Dave Wallace and Madison County School Superintendent Elmer Thomas announced the partnership Monday afternoon.

    July 29, 2014 1 Photo

  • 7-29 Lucille May 1.jpg Memories bloom in May’s garden

    After realizing a story was being written about 96-year-old Lucille May, tenants of Willis Manor gathered in the lobby to share stories about her.
    Affectionately called “Mamaw” by other residents and workers at the apartment building, May has spent the four years of her residence transforming an outdoor garden that was overtaken by weeds. It’s now a thriving flowerbed, complete with interesting rocks, decorations and conversation.

    July 29, 2014 4 Photos

  • 7-29 Construction 1.jpg Water Street storm-water digging begins

    Caisson holes were drilled and then filled with concrete and steel poles Monday to create a retaining structure to shore up the Allstate Insurance building foundations' firm when excavation for the Water Street Stormwater Improvement Project begins.
    Digging for 20 ton, 6 by 7 foot concrete box culverts will begin today, if weather permits, said Jason Hart, Richmond’s director of Planning and Zoning. The culverts will help reduce the likelihood of flooding on Water Street by carrying storm water under Main Street, the CVS parking lot and Irvine Street to a stream, he said.

    July 28, 2014 4 Photos

  • 7-29 Robert Abney.jpg RPD: Bottle bomb injures man, damages neighbor’s home

    Richmond Police on Friday charged Robert Abney, 30, of Moberly Avenue, in connection with a May 30 explosion that injured Abney and damaged a neighbor’s home.
    Officers were dispatched May 30 to a residence in the 500 block of Moberly Avenue to investigate the report of an explosion.
    They found the remains of a plastic bottle bomb near a residence adjoining Moberly’s, according to an RPD news release. A wall of the occupied home was smoldering and grass was burned in the area, it added.

    July 28, 2014 4 Photos

  • 7-29 Steven Coffey.jpg Two led police on I-75 chase from Berea

    Berea Police found a man passed out and intoxicated inside his crashed vehicle on Interstate 75 Wednesday, according to a police report.
    Steven Coffey, 34, of Berea, had slurred speech and was unsteady on his feet when officers arrived at the vehicle, the police report stated. They determined he was under the influence of drugs, the report stated.

    July 28, 2014 2 Photos

  • 7-27 HeartChase 1.jpg A race to the finish line

    Sheltered by overcast sky and supported by a cool breeze, teams competed Saturday morning in the second annual HeartChase at Richmond Centre.

    July 26, 2014 6 Photos

  • 7-27 Hops 1.jpg Hops & Vine Festival raises money for humane society

    Downtown Richmond’s Hops and Vine Festival started more than two years ago with a question.

    July 26, 2014 3 Photos

  • Bill Clinton will stump for Grimes in eastern Kentucky

    Democrat Alison Lundergan Grimes is again calling in the “Big Dog” in her quest to unseat five-term Republican U.S. Sen. Mitch McConnell.

    Former President Bill Clinton will join Grimes on Aug. 6 for a campaign rally in eastern Kentucky, according to a campaign official who would provide no further details.

    July 26, 2014

  • 7-26 Stockyards 2.jpg Cattle farmers enjoying ‛perfect storm’

    Demand is up, and cattle are selling for record prices.

    At the same time, corn prices are down and fuel prices have stabilized.

    That adds up to a “perfect storm” for Kentucky cattle farmers, said Gary Kelly of Paint Lick as he ate lunch Friday with his brother Jimmy at the restaurant across from the Blue Grass Stockyards.

    July 26, 2014 5 Photos

  • 7-26 Fire Practice Structure 1.jpg Fire training tower going up

    A new training tower for the Richmond Fire Department is rising on Four Mile Road.

    Construction began Thursday on the four-story, steel-framed structure.

    July 26, 2014 4 Photos

AP Video
Raw: 2 Shells Hit Fuel Tank at Gaza Power Plant Raw: Massive Explosions From Airstrikes in Gaza Giant Ketchup Bottle Water Tower Up for Sale Easier Nuclear Construction Promises Fall Short Kerry: Humanitarian Cease-fire Efforts Continue Raw: Corruption Trial Begins for Former Va Gov. The Carbon Trap: US Exports Global Warming UN Security Council Calls for Gaza Cease-fire Traditional African Dishes Teach Healthy Eating 13 Struck by Lightning on Calif. Beach Baseball Hall of Famers Inducted Israel, Hamas Trade Fire Despite Truce in Gaza Italy's Nibali Set to Win First Tour De France Raw: Shipwrecked Concordia Completes Last Voyage Raw: Sea Turtle Hatchlings Emerge From Nest Raw: Massive Dust Storm Covers Phoenix 12-hour Cease-fire in Gaza Fighting Begins Raw: Bolivian Dancers Attempt to Break Record Raw: Israel, Palestine Supporters Rally in US Raw: Air Algerie Flight 5017 Wreckage
Hyperlocal Search
Premier Guide
Find a business

Walking Fingers
Maps, Menus, Store hours, Coupons, and more...
Premier Guide
Poll

Should Madison County’s three local governing bodies ban smoking in indoor public places?

Yes
No
     View Results