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Legislative Committee Advances New Selenium Regulations Despite Confusion, Concerns

The Kentucky Administrative Regulation Review Committee has advanced new rules proposed by the state Energy and Environment Cabinet to regulate the levels of selenium in Kentucky waterways. The state says the new regulations are a necessary update, and will adequately protect the environment and aquatic species; but environmental groups have raised serious concerns and say the proposal doesn't comply with the federal Clean Water Act and is unenforceable.The measure passed 5-3. Committee co-chairman Rep. Johnny Bell says he's not confident the members of the committee comprehended the full effects of the regulation change."I don't think anyone truly had a good understanding of what this will do in the future," he said.Selenium is a naturally occurring element that is released into waterways during surface mining.  Studies have found it's toxic to aquatic life, and high-level exposure has been linked to health problems in humans.I summarized the proposed changes in a story last week. One of the biggest issues environmental groups have is with a change to the way how the Division of Water measures the chronic standard for selenium. Right now, the chronic standard for state waterways is 5 micrograms per liter of selenium. Under the proposed new standard, a level of 5 micrograms per gram of selenium triggers automatic fish tissue sampling.The logic behind testing fish tissue is that selenium bioaccumulates through the food chain. So the state says it makes sense to rely on fish tissue sampling to determine whether the selenium levels are at levels unsafe for aquatic animals. But environmental groups say waiting until selenium is present at high levels in fish tissue isn't protective of the environment. Rep. Bell, a Democrat from Barren County, says he asked committee member Tommy Turner to move to defer a decision on the regulation change, but the Energy and Environment Cabinet wouldn't agree to defer.Bell says he wasn't confident that the science behind the regulations was based on independent studies, and he doesn't think it should have passed. He says it's difficult to balance economic development and public health and safety, but he would rather err on the side of safety."I can't look at the public and say that we had an unbiased, unattached individual or group do a study that would tell us how this would impact our health and our environment," he said.