FRANKFORT — Concerns by environmental representatives persuaded the Administrative Regulations and Review Subcommittee Monday to defer a new regulation proposed by the Cabinet for Energy and Environment on discharges of selenium into Kentucky streams.
The environmentalists accused the cabinet of amending an advertised change in the regulation after a public comment period.
Tom Fitzgerald of the Kentucky Resources Council called the move “an unprecedented action,” saying it was only the second time Kentucky has ever sought to make such a change without full public review.
Bruce Scott, commissioner of Environmental Protection, agreed it was unusual but said it is legal under provisions of Kentucky administrative regulations, a view confirmed by the committee chairman, Johnny Bell of Glasgow.
But after testimony from Fitzgerald and Ted Withrow, a former Kentucky Division of Water employee, committee members had several questions about the proposed changes. One change would be to switch from a measurement of selenium in the water itself to measuring its build-up in fish tissues.
That prompted Rep. Tommy Turner, R-Somerset, to ask if the Department of Fish and Wildlife had reviewed the proposed change. Rep. Stan Lee, D-Elizabethtown, asked how significant or dramatic the change is from what was publicly proposed and what was finally placed before the committee.
“This is a major, substantial change,” Fitzgerald said.
Fitzgerald, who has lobbied the legislature for more than two decades on environmental issues, gaining grudging respect and admiration even from those who generally oppose stronger environmental regulations, was heavily critical of the cabinet.
“This cabinet has shown a particular proclivity to thumb its nose at (Kentucky’s regulations) in recent years,” he said.
Bev May, who lives along Wilson Creek in Floyd County, a stream she says has been polluted by coal mining discharges, said the cabinet’s proposal on selenium would mean “no coal company will ever be held liable for discharging selenium into our streams.”
Withrow, the retired Davison of Water inspector, said, “Selenium is lethal to the aquatic environment.” He said the cabinet’s proposal to measure selenium in egg ovaries of fish will be futile.
“You’ll have no egg ovaries to look at one (selenium) reaches these levels,” Withrow said.
Scott defended the cabinet’s thinking in seeking the change, saying it is based on new science. But he said the cabinet would also “be welcome to deferring this until the next committee meeting.”
Bell suggested the two parties try to work out any differences and invited the environmentalists to visit him to share their concerns before that next meeting.