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
  • 4-18 PackTrack1a.jpg Walkers, runners of every age ‘Pack the Track’

    Waco Elementary and Model Laboratory schools students raised more than $8,000 (and counting) for the annual Pack the Track event at Eastern Kentucky University’s Tom Samuels Track Thursday, said Kim DeCoste of the Madison County Diabetes Coalition.

    April 18, 2014 14 Photos

  • 4-18 George WilliamsWEB.jpg Suicide attempt fatal for inmate

    A Todd County man died Tuesday at a Lexington hospital following a suicide attempt at the Madison County Detention Center, according to Madison and Fayette county officials.
    George Kenneth Williams, 50, of Allensville, was transported Monday afternoon by Madison County EMS to Baptist Health Richmond, according to EMS Director Jimmy Cornelison. He was then transferred to Baptist Health in Lexington where he died Tuesday, according to the Fayette County Coroner’s Office.

    April 17, 2014 1 Photo

  • CCDW instructor indicted on charges of failing to provide training

    A Madison County grand jury has indicted a carry-concealed weapons permit instructor on charges he falsely claimed to have provided instruction to one person for a CCDW permit and provided incomplete training to three others.
    Christopher D. Fins was indicted April 9 on one count of CCDW instructor not providing firearms training and three counts of providing incomplete firearms training.
    Fins faces up to 20 years in prison if convicted of all four felony charges.

    April 17, 2014

  • EKU dorm sprinklers may have been activated maliciously

    Fire-suppression sprinklers went off about 2:30 a.m. Thursday in Eastern Kentucky University’s Martin Hall dormitory, prompting its evacuation.
    Fluctuating pressure then caused a campus water main to break, according to EKU spokesperson Mark Whitt.
    The cause is uncertain, but university officials are investigating to determine if the sprinklers were activated maliciously, Whitt said.
    The residence hall houses 260 students who were placed in other university housing or stayed with friends. All were able to move back in later in the day, he said.

    April 17, 2014

  • Sixth person charged in motel meth bust

    A sixth person has been charged in connection with a methamphetamine-making operation discovered last week at the Bel Air Motel in Richmond.
    Roger M. Million, 24, Moberly Road, was charged Wednesday with manufacturing methamphetamine.

    April 17, 2014

  • 4-18 George WilliamsWEB.jpg Madison County inmate dies in Lexington hospital

    An inmate at the Madison County Detention Center died Tuesday at a Lexington hospital, according to officials with the Fayette County Coroner’s Office and Madison County EMS.

    April 17, 2014 1 Photo

  • Sprinkler goes off; dorm evacuated

    Fire-suppression sprinklers went off at about 2:30 a.m. Thursday in Eastern Kentucky University’s Martin Hall dormitory, prompting its evacuation.

    April 17, 2014

  • 4-17 4Hfieldday1.jpg 4-H Environmental Field Day

    Madison County fourth-graders participated in several hands-on activities Tuesday and Wednesday during the annual 4-H Environmental Field Day at the county fairgrounds.

    April 16, 2014 8 Photos

  • Hearing delayed on West Main zone change

    Signs giving notice of a public hearing on a proposed zone change at the corner of West Main Street and Tates Creek Avenue were not posted in time for the Richmond Planning Commission to scheduled a public hearing for its April 24 business session.

    April 16, 2014

  • Berea mulls break with Kentucky Utilities

    The city of Berea is considering whether to extend its contract with Kentucky Utilities or to shop around for another electricity provider.

    April 16, 2014

AP Video
Deadly Avalanche Sweeps Slopes of Mount Everest Police Arrest Suspect in Highway Shootings Drought Concerns May Hurt Lake Tourism Vermont Goat Meat Gives Refugees Taste of Home Calif. Investigators Re-construct Fatal Bus Cras Mayor Rob Ford Launches Re-election Campaign Appellate Court Hears Okla. Gay Marriage Case Author Gabriel Garcia Marquez Dead at 87 Beau Biden Plans 2016 Run for Del. Governor Chelsea Clinton Is Pregnant Horseless Carriage Introduced at NY Auto Show Obama Hopeful on Ukraine, Will Watch Russians Flamingo Frenzy Ahead of Zoo Construction Crew Criticized Over Handling of Ferry Disaster Agreement Reached to Calm Ukraine Tensions Raw: Pope Francis Performs Pre-easter Ritual Boston Bombing Survivors One Year Later Sister of Slain MIT Officer Reflects on Bombing
Hyperlocal Search
Premier Guide
Find a business

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

Should the Richmond City Commission stop rezoning property to allow construction of apartments?

Yes.
No
     View Results