FRANKFORT — Kentucky is seeking federal approval to alter its methods for monitoring selenium pollution, a move environmental groups say is designed to protect the coal industry from lawsuits over polluted waterways.
The Kentucky legislature's Administrative Regulation Review subcommittee voted 5 to 1 Tuesday to approve new regulations that would allow the state Energy and Environment Cabinet to test fish tissue for chronic levels of selenium, a naturally-occurring element that can be hazardous at high levels.
Selenium can be discharged during surface coal mining, road building or other activities involving excavation.
Currently, the state tests water areas for selenium. If excessive amounts of selenium are found, a citation can be issued. Under the proposed new regulations, if selenium is detected in the water a second test on fish tissue would have to be conducted to determine if there was chronic accumulation.
The new standards will not take effect unless the Environmental Protection Agency approves them. The EPA will not make a decision until later this year.
Opponents told the legislative panel that testing fish tissue to determine selenium levels is too cumbersome and unenforceable.
Ted Withrow, who spoke on behalf of the environmental advocacy group Kentuckians for the Commonwealth, said Peters Creek in Pike County currently exceeds selenium standards. That creek is dead with no aquatic life, Withrow said.
"If you could find a fish to test using the proposed regulation and it was exceeding allowable limits, we come to the problem we have tried so hard to explain to the cabinet: Who do you write the violation to? There are a dozen mines on Peter Creek," Withrow said.
Environmentalists also said the state Department for Environmental Protection used selective studies to back up its proposed new standards.
"One part of a single study was used to defend the proposed new standard, while another part of the same study was dismissed as unsound," said Carey Henson, also with Kentuckians for the Commonwealth. "The scientific method does not allow for cherry picking."
Bruce Scott, commissioner of the Department for Environmental Protection, said environmentalists also used selective studies to show that the department's selenium standards were not stringent enough.
He said the new standards would protect Kentucky's waterways.
"It's not a loosening or lessening of the standards," Scott said. The EPA and the U.S. Department of Fish and Wildlife have recommended using fish tissue sampling to determine chronic exposure to selenium, Scott said. The Kentucky Department of Fish and Wildlife Resources has not determined that selenium contamination has harmed fish or other aquatic life, he said.
Environmentalists contend that the state's move to alter selenium monitoring standards is part of an effort to protect the coal industry from lawsuits by environmental groups.
Recently, the Sierra Club and other environmental groups relied on existing selenium standards to sue coal mines that are now part of Patriot Coal in West Virginia. One estimate has put the cost of cleaning up selenium pollution in West Virginia at roughly $440 million.
The West Virginia legislature also is considering new selenium standards that would require additional testing if water samples contain selenium.
Scott dismissed claims that the lower standards were meant to protect the coal industry from costly litigation.
"It has nothing to do with economics," Scott said after Tuesday's meeting. "It's completely science based."
State Rep. Tommy Turner, R-Somerset, attempted to delay Tuesday's vote on the new regulation until environmentalists could come to a consensus with the department over the standards, but Scott urged lawmakers to take a vote.
The regulation was first discussed at the committee's February meeting but a vote was delayed after opponents said the state did not give the public adequate notice of the proposed selenium standards.
Tuner — who ultimately decided not to vote on the new standard — said too many Kentucky streams and rivers were dead and the department did not seem to know why.
"I'm disappointed that an issue that's this important is dealt with in this way," he said.
Rep. Johnny Bell, D-Glasgow, also opted not to vote on the new standards. Sen. Perry Clark, D-Louisville, was the only "no" vote.