The Richmond Register

April 24, 2013

Some lawmakers question selenium regulation

Lawmakers

By Ronnie Ellis
CNHI News Service

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.