, Corbin, KY

May 14, 2014

‘Toxic’ in Kentucky? Selenium and Obamacare

The Times-Tribune

CORBIN — By Ronnie Ellis / CNHI News Service

Two “toxic” subjects dominated an otherwise routine meeting of the General Assembly’s Administrative Regulations Review Subcommittee meeting Tuesday: selenium and Obamacare.

The toxicity of either depends on who is doing the talking, of course.

The subcommittee last year approved on a split vote new regulations the Cabinet for Energy and Environment proposed to monitor selenium pollution in Kentucky streams. The chemical is found in minerals and in trace amounts in the cells of all animals, but it is toxic in larger amounts. It is often exposed and released by mining operations, especially surface mining.

Some committee members, led by Rep. Tommy Turner, R-Somerset, wondered if the proposed new chronic standards which would measure selenium found in fish tissue once certain “acute” levels are found in the water are sufficient to protect wildlife. Environmentalists, including former state Division of Water employee Ted Withrow, argued the standard was woefully insufficient.

“If you approve this new acute standard, there won’t be any fish in those streams to test,” Withrow said at the time.

But the subcommittee — with Turner and Sen. Perry Clark, D-Louisville, voting no and Rep. Johnny Bell, D-Glasgow passing — approved the new regulation based on testimony by Commissioner of Environmental Protection Bruce Scott.

In March of this year, CNHI News reported that the U.S. Department of Fish and Wildlife also objected to the new standard. In a letter to the federal Environmental Protection Agency, Virgil Lee Andrews Jr., the Frankfort field office supervisor for USFAW, expressed concerns nearly identical to those Withrow raised. Subsequently, Turner asked that the cabinet reappear and explain the apparent discrepancy.

Turner asked Scott on Tuesday when he learned of Andrews’ letter and whether it caused him concern. Scott said he saw the letter this February, well after the regulation had been approved last spring and became effective in November 2013.

“Sure,” Scott said when asked if it concerned him, noting it expressed some concerns the cabinet had heard previously but added that in correspondence prior to adoption of the new standard USFAW hadn’t expressed the same concerns.

Scott said EPA had approved the new regulation; that it was based on good science; and that it is not unusual for EPA and USFAW to disagree.

Turner asked if the subcommittee couldn’t reconsider its approval. Scott said it could but cautioned the science behind the standard is complex. His responsibility, he said, is to review and submit such regulations to EPA for its approval.

“We feel comfortable, the federal agency (EPA) that we report to, they feel comfortable about where we are,” Scott said.

Withrow repeated his prior concerns that the selenium regulation is insufficient to prevent harmful pollution and that the cabinet selectively chose information from studies supporting its recommendation while disregarding contrary scientific findings.

The subcommittee took no action, but Turner said he will continue to monitor the issue.

Scott wasn’t the only one on the hot seat. Medicaid Commissioner Lawrence Kissner faced tough questioning on proposed regulations related to the expansion of Medicaid under provisions of the Affordable Care Act.

He was also grilled about a co-pay regulation for non-emergency visits to hospital emergency rooms and the tendency of two managed care organizations which contract with the state to pay Medicaid claims and hold down costs to reject claims by local physicians and emergency rooms.

Kissner said the MCOs negotiated agreed contracts with the hospitals and the disputes were between the parties to the contract, not the cabinet or the legislature. That offended Bell and Sen. Alice Forgy Kerr, R-Lexington. She called Kissner’s attitude “disrespectful” of the committee.

But the ultimate problem for some subcommittee members — at least the Republicans — was the regulations relate to the Affordable Care Act or Obamacare as they call it. Sen. Sara Beth Gregory, R-Monticello, as she previously has done, moved that all the regulations be rejected because the expansion was implemented without legislative approval.

Like the previous times, however, Gregory’s motion failed to garner the five votes necessary to find them “deficient.” Bell passed while all the others voted along party lines.

Courts have ruled Gov. Steve Beshear had the authority to expand Medicaid under legislation previously enacted by the General Assembly because it allowed the state to access more federal funds for the federal-state partnership that covers medical costs of the poor and disabled.

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