Tennessee House rejects waterways legislation

June 4, 2009 —

House lawmakers narrowly rejected a bid Wednesday to rework the rules on how much of a potentially toxic substance called selenium can exist in Tennessee waterways and aquatic life.

The 49-42 vote, which came after a wide-ranging, two-hour debate Wednesday, fell one short of the majority needed for passage.

Selenium is a naturally occurring element that's beneficial in tiny amounts but is toxic to humans in high concentrations. It can be particularly harmful for certain fish and aquatic life, causing deformities and death, according to the Environmental Protection Agency.

In fact, a scientist had testified Tuesday in a committee hearing that changing the rule would harm the state's largemouth bass and bluegill fish populations, along with some other species.

On Wednesday, as lawmakers spoke at length of peer review, EPA standards and using the substance in cattle feed, they were upbraided by one of their own.

"We have had more bad science quoted today. If there were a group of scientists watching today, they can't hear us anymore because they are laughing so hard," Memphis Democrat Rep. Jeanne Richardson said.

Earlier this session, the bill had quickly passed the Senate. It was sponsored there by a lawmaker receiving the maximum campaign contributions from people associated with National Coal Co., a company that environmental groups have sued over release of selenium into waters near an East Tennessee mining operation.

The sponsor, Republican Sen. Ken Yager of Harriman, has declined for three weeks to return telephone calls from The Tennessean. At least six messages have been left with his staff.

Yager received the maximum $1,000 from Daniel A. Roling, president and CEO of National Coal, in January 2009.

He also received $1,000 campaign contribution in September 2008, from Jon Nix, a founder and a former president of National Coal.

The bill's House sponsor, Republican Rep. Joe McCord of Maryville, received no money from either, according to state information.

A spokeswoman for the company, Christine Pietryla, had said last month that the company was not behind the proposed legislative change. She did not return calls Tuesday requesting an interview. In an e-mail Wednesday, she took issue with singling out Roling for his political contributions.

"Private citizens make donations to the people/parties that they support everyday without accusation," she said. "In fact, it is made public information in order to prevent the suggestion of anything improper."

After Wednesday's vote, McCord told legislators that he was "just happy this is over." He could bring the bill back up this session, but said later that he didn't know if he would.

Number disputed

Selenium, which can concentrate around coal mines and coal ash facilities, accumulates in an animal's tissues.

"The bottom line is — their number's too high," Dennis Lemly, a biologist with the U.S. Forest Service and Wake Forest University said Tuesday of the legislation.

He had testified earlier in the day to the House Conservation & Environment Committee, which was considering and then voted against re-hearing the bill that it had already passed.

The proposal would require the state to measure legal limits of selenium in aquatic life based on its concentration in fish tissue.

Up to 7.5 parts per million would be allowed in the fish. The numbers come from a draft EPA document that the federal agency neither recommends states follow nor has proposed to make final at this point.

It was based on studies Lemly performed. He said, however, that his research was misinterpreted.

Another biologist, Steve Canton, with GEI Consultants in Colorado, who testified for the mining industry earlier this session, had another take.

"I don't think the EPA criteria is fatally flawed," he said in a telephone interview Tuesday.

Another more recent study showed that the levels could safely be as high as 9 or 10 parts per million in fish tissue, he said.

Lemly said that the later research was conducted under conditions in which fish had fewer natural stressors, such as decreased daylight in wintertime.

Also, wildlife was never considered in the EPA draft, he said.

U.S. Fish and Wildlife Service research shows that 85 percent of sensitive species, including mallard ducks, could die at the levels Tennessee lawmakers want applied, Lemly said.

Lemly's research with bluegill and largemouth bass indicates that 40 percent of these would die with levels at 5.8 parts per million in their bodies.

The Tennessee Department of Environment and Conservation says it has no official opinion on the bills.

The Sierra Club, Save Our Cumberland Mountains and Tennessee Clean Water Network filed a lawsuit last fall against National Coal for releasing selenium-tainted water into creeks around Zeb Mountain, the site of a mine it operates in East Tennessee.

The creeks flow into tributaries of the Cumberland River, which passes through Nashville.

Rep. Mike McDonald, a Portland Democrat, said the selenium proposal is all about the lawsuit.

"It causes confusion and delays in court and allows mining companies to continue releasing dangerous levels of selenium," he said.

Chuck Laine, executive director for the Tennessee Mining Association, said the bill is a result of the state starting to check selenium levels at mining operations.

He said old EPA criteria from the 1980s are being used and that the draft criteria are the best science available.

"We don't mind standards," he said. "We want to follow the rules, but the standards are flawed."

He said the EPA will have to approve anything the state does anyway.

Brian Paddock, a volunteer representative of the Sierra Club, had called it "worrisome" that lawmakers would consider the bill, particularly after TVA's Kingston coal ash spill, where 5.4 million cubic yards of the waste tumbled into the Emory River and onto nearby land.

Selenium is one of the pollutants that have been found in the water there.