Environmental bill could kill wildlife, scientist says

June 3, 2009 —

Many largemouth bass, bluegill and other sensitive fish species would be dead before a coal-related pollutant even reached the level that state lawmakers are poised to allow in the environment, a scientist told a legislative committee.

 

The Senate sponsor of the bill received campaign financing from the head of the National Coal Co., which has a lawsuit pending about the potentially toxic substance at a mining site.

 

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

 

At issue is an element called selenium, a substance in nature that is beneficial in trace amounts but can be toxic when unlocked from coal and released in large amounts at mining and coal ash sites.

 

“The bottom line is – their number’s too high,” said Dennis Lemly, a biologist with the U.S. Forest Service and Wake Forest.

 

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 passed earlier this session. The next step is to go to the full House, where the bill is scheduled to be heard at 9 a.m. today.

 

The proposal (House Bill 1204 and Senate Bill 1331, which already passed the full Senate) would change the state’s way of measuring legal limits of selenium from the amount found in water to the amount found in fish tissue.

 

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

 

It was based on studies that Lemly did. He says, however, that his research was misinterpreted, and that the agency has yet to properly replicate his work using its own research.

 

Another biologist, Steve Canton, with GEI Consultants in Colorado, who testified 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.

 

The numbers that EPA might adopt are still being considered, but testing fish tissue rather than water is a generally accepted advance in determining potential levels of harm, he said.

 

Also, the bill calls for Tennessee adjusting its rule whenever the EPA changes the federal criteria.

 

“The state would always use the most up-to-date science,” he said.

 

Lemly said that the later research referred to 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% of sensitive species, including mallard ducks, could die at the levels Tennessee lawmakers want applied.

 

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

 

The Tennessee Department of Environment and Conservation has, to the annoyance of both those opposed and against the proposal, neither endorsed nor opposed the bill.

 

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 its Zeb Mountain coal-mining site.

 

These East Tennessee creeks flow into tributaries of the Cumberland River that passes through Nashville.

 

Rep. Mike McDonald, D-Portland, 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.

 

National Coal Co. officials did not return telephone calls or an email on Tuesday, but a spokeswoman said last month that it was not behind the proposed legislation.

 

“We couldn’t be,” said Christine Pietryla, for National Coal. “Only senators and legislators are behind legislation.

 

“Whether we’re in favor of it is a different story. Without reading the bill, I don’t know.”

 

Yager takes National Coal chief’s money

 

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 former president and former board member of National Coal.

 

The House sponsor of the bill, Rep. Joe McCord, R-Maryville, received no money from either, according to state information.

 

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, 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.