, Corbin, KY

State News

April 22, 2014

Committee seeks explanation of selenium reg discrepancies


A committee of state lawmakers wants the Energy and Environment Cabinet to explain apparent inconsistencies between its position and that of the U.S. Fish and Wildlife Agency on a new regulation governing how much selenium mining operations may release into Kentucky streams.

Last year, the cabinet persuaded the Administrative Regulations Review Subcommittee to sign off on a revised standard for testing acute (immediate) and chronic (cumulative) selenium levels which some mining and industrial operations are permitted to discharge into streams. Environmentalists complain the new standard isn’t founded on sound science and poses risk to fish and other aquatic wildlife.

Selenium is a chemical found in mineral ores and in trace amounts in the cells of all animals. It is toxic in larger amounts and is exposed during excavation or explosions of rock and ore, including surface mining operations.

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.

At last year’s committee meeting, Ted Withrow, a retired employee of the Kentucky Division of Water and now a member of the Kentuckians for the Commonwealth, told the subcommittee that by the time the new acute standard triggers testing of fish tissues, “there won’t be any fish in those streams to test.”

But Bruce Scott, Commissioner of Environmental Protection, told the subcommittee “a chronic water quality criterion for selenium based on fish tissue is the appropriate manner in which to address selenium concerns.” He said the United States Environmental Protection Agency and the U.S. Fish and Wildlife Service agree that fish tissue is the appropriate manner in which to express the chronic water quality criteria for selenium.

“In fact, USEPA approved Kentucky’s chronic fish tissue standard and USEPA has made recent public statements to this effect,” Scott said this week.

CNHI News obtained a copy of a December 2013 letter from Virgil Lee Andrews Jr., the Frankfort field office supervisor for USFAW, to the Region Four office of the EPA which indicated his agency has questions about the new standard and never signed off on it.

That story prompted committee member Rep. Tommy Turner, R-Somerset, at last week’s subcommittee meeting to ask that Scott or the cabinet be invited to the subcommittee’s May meeting and explain the discrepancy between the cabinet’s testimony and what Andrews says in the letter.

“I would like to go back and talk about (the regulation),” Turner said near the end of last Monday’s subcommittee meeting. “I would ask the cabinet to come back to our next regular meeting and explain this and have (committee) staff research what kind of information we were given.”

Turner is an avid outdoorsman, fisherman and hunter and he worries about the impact of selenium on wildlife.

“Nobody’s done a very good study about that,” Turner said Monday.

When the subcommittee approved the new selenium regulation last year, several members wrestled with the difficulty of making a decision on such complicated scientific research. Some who voted to approve the regulation said they had to rely on the cabinet’s expertise.

Scott said Monday he is happy to meet with the subcommittee again if asked.

“We have not at this time received an invitation from the committee to attend the May 2014 committee meeting,” Scott said. “If we are asked to attend, as always, I am sure that we will be present to provide any information or answer any questions that the committee may have.”

Rep. Johnny Bell, D-Glasgow, one of the subcommittee co-chairs questioned the new selenium standard but he said Monday the committee is simply trying to make sure it made its decision based on the best information.

Bell said information contained in Andrews’ letter seemed to contradict what the committee understood Scott to say about Fish and Wildlife’s position.

“We’re not pointing fingers at anyone,” Bell said. “We just want (the cabinet) to come back and explain what appears to be conflicting information.”

Scott said he provided no misleading information at the 2013 meeting at which the new regulation was approved and provided a quote from his testimony at that time:

“The chronic standard that we have in place still retains the existing five microgram per liter level: but it also incorporates a fish tissue number, which U.S. EPA, U.S. Fish & Wildlife, all the science says that’s the way you should be looking at selenium because of bio-accumulative nature.”

In his letter to the EPA, Andrews said 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.

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

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