The federal Environmental Protection Agency has approved controversial new regulations for how Kentucky monitors the discharge of some mining pollutants into streams.
The regulation governs how the Kentucky Cabinet for Energy and Environment monitors the presence of selenium in waterways. The naturally occurring substance is released into streams by surface mining. Safe in small amounts, it is toxic in larger quantities. And it can build up along the food chain over time.
Last spring the cabinet proposed changing two standards: one for chronic (cumulative) and acute or short-term presence of selenium. Previously, the standard was simply to measure the selenium presence in the water and if it exceeded certain proscribed levels, the discharging mine operator would be in violation of its permit.
But the cabinet proposed replacing the old standard with a two-tiered measuring process: when selenium levels exceed a proscribed level, the state would then measure the presence of selenium in fish tissues.
The change was supported by the coal industry and Kentucky Chamber of Commerce and the cabinet claimed it was based on the latest and best available science. But it was bitterly opposed by environmentalists and some lawmakers who feared its impact on water quality and wildlife.
Testifying before the legislature’s Administrative Regulations Review Subcommittee, Ted Withrow, a retired Division of Water inspector and now a member of the Kentuckians for the Commonwealth, told lawmakers, “Selenium is lethal to the aquatic environment and the proposal to test for selenium presence in the ovaries of fish will be futile.
“You’ll have no egg ovaries to look at once (selenium) reaches these levels,” Withrow said.
But the committee, after a long and testy debate, let the regulations go through on a split vote. But the regulations still had to be approved by the EPA.
That’s what the EPA told the state on Friday it has done in a letter from its Region Four office in Atlanta, at least on the chronic standard. It did not approve the proposed acute standard and said the old acute standard will remain in effect.
It also clarified the chronic standard. In the letter, Region Four Acting Administrator A. Stanley Meiburg wrote “that in the event that sufficient fish tissue cannot be obtained, the permit holder will be deemed to be in non-compliance” with its permit “for exceeding the chronic trigger level.”
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