The Richmond Register

March 7, 2014

Feds deny giving OK to selenium standards

By Ronnie Ellis
CNHI News Service

RICHMOND — When lawmakers wrestled last year with new standards for releasing selenium into streams by coal mines and industry, they were assured by state officials the proposals were based on sound science and approved by U.S. Fish and Wildlife Service officials.

But a Dec. 27, 2013, letter from Virgil Lee Andrews Jr., the Frankfort field office supervisor for USFAW, to the Region 4 office of the Environmental Protection Agency indicates the information given the legislature’s Administrative Regulation Review Subcommittee wasn’t accurate.

Sen. Ernie Harris, R-Crestwood, who co-chairs the subcommittee and voted to approve the new regulation, said the new standard might need another look in light of Andrews’ letter.

“With this new information, maybe we need to look at it again,” Harris said.

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.

Kentucky measures selenium in waterways through both an “acute” (immediate) and a “chronic” (ongoing, cumulative) standard. Last year, the Energy and Environment Cabinet’s Division of Water proposed a new acute standard to the subcommittee.

Environmental groups claimed the higher acute standard is toxic and unenforceable and they claimed the cabinet “cherry-picked” scientific studies to produce the result it desired.

Under the new regulation, when the higher acute threshold is detected it wouldn’t automatically trigger a sanction against the alleged polluter. Instead, the state would test tissue samples from fish and fish eggs to determine if they contained toxic levels of selenium.

But Ted Withrow, a decorated former employee of the Division of Water, told the committee: “If you approve this new acute standard, there won’t be any fish in those streams to test.”

Bruce Scott, Commissioner of Environmental Protection, maintained to lawmakers that the new standard was based on solid science and federal Fish and Wildlife officials had signed off on it. The subcommittee approved the new regulation on a controversial split vote.

In his letter to the EPA, Andrews wrote that the agency stated in its determination there were discussions and agreement on the criteria between the EPA, the Kentucky Division of Water and the Fish and Wildlife Service.

“This statement is not correct and does not capture the full scope of the discussion,” Andrews wrote. “The Service explicitly requested additional review and explanations of the fate and transport of selenium in Kentucky before accepting the (proposed) criteria. Our opinion has not changed on this matter.”

The letter says USFAW is concerned the higher levels of selenium may harm fish and other aquatic wildlife, including federally endangered species, “before fish tissue concentrations ever approach” the new standards.

In an interview this week, Andrews said the service shares the concern expressed to the legislative subcommittee by Withrow, “that by the time some of these triggers happen, the harm will already have occurred.”

He said he never told DOW officials the service was satisfied with the state’s review of scientific literature or the proposed new standards. Scott continues to say otherwise.

“The state consulted and met with Kentucky (branch of the) U.S. Fish and Wildlife staff during the regulation development process during which Kentucky USFAW staff were supportive of Kentucky’s fish tissue approach,” Scott told CNHI News in a written response to questions.

“As USFAW suggests in their consultation letter with EPA, Kentucky DOW conducted a thorough scientific review of the research conducted by nationally recognized experts in developing that criteria,” Scott said.

But Andrews’ Dec. 27, 2013 letter says: “The Service strongly recommends that nationally recognized selenium experts review the DOW’s interpretation of the literature and criteria derivation for scientific soundness.”

That seems to bolster Withrow’s testimony before the legislative committee.

“The U.S. Fish and Wildlife Service raised grave concerns about the Division of Water’s lack of credible science used to develop the standards for Selenium,” Withrow said last week. The service “fears fish, other aquatic and water dependent species such as birds and amphibians will be poisoned by selenium by the time levels of this pollutant reach the trigger point set by the KDOW standard.”

The contents of the letter took some subcommittee members by surprise, but not Rep. Tommy Turner, R-Somerset, who voted against the new regulation.

“I thought all along it wasn’t right,” said Turner. “They just ran it over us and this proves it wasn’t right.”

When the regulation was approved last fall, Harris’ subcommittee co-chair, Rep. Johnny Bell, D-Glasgow, warned Scott he would hold him responsible for the information provided the lawmakers. When told about Andrews’ letter, Bell said he hadn’t forgotten what he told Scott.

“If there’s something going in our waterways that can be shown to be harmful to our people, we’ve got to address that problem in no uncertain terms,” Bell said.

The EPA has not yet implemented the new selenium standard and environmental groups have sued in federal court to halt implementation. Last week, attorneys for the environmental groups amended the suit to include the information in Andrews’ letter.

Ronnie Ellis writes for CNHI News Service and is based in Frankfort. Reach him at Follow CNHI News Service stories on Twitter at