‘Open for business’ or ‘body count?’

By Liam Niemeyer | Kentucky Lantern

FRANKFORT — Kentucky reg­u­la­tors would have to wait until peo­ple are active­ly being harmed before issu­ing reg­u­la­tions to pro­tect pub­lic health and the envi­ron­ment under a bill that is backed by lob­by­ists for man­u­fac­tur­ers and the state Chamber of Commerce.

Senate Bill 178, which moved out of a Senate com­mit­tee on a par­ty-line vote Wednesday, also would block state pub­lic health reg­u­la­tions from being more strin­gent than exist­ing fed­er­al reg­u­la­tions or law. 

Senate bill 178

Sponsored by Sen. Greg Elkins, R‑Winchester, SB 178 cre­ates sev­er­al hur­dles for a reg­u­la­tion deemed stronger than fed­er­al law to ensure it’s “based upon the best avail­able sci­ence and the weight of sci­en­tif­ic evi­dence,” along with being “tech­no­log­i­cal­ly achievable.” 

Also, under SB 178, a pol­lu­tant would have to be injur­ing peo­ple or mak­ing them sick before a new reg­u­la­tion could be imple­ment­ed. Scientific stud­ies involv­ing ani­mal or human cells that estab­lish a “direct causal link” with expo­sure to a con­t­a­m­i­nant or pol­lu­tion could also be used as rea­son­ing for the regulation. 

Elkins told law­mak­ers on the Senate Natural Resources and Energy Committee Wednesday that the bill “says to busi­ness­es in Kentucky, we are open for busi­ness.” Environmental advo­cates, how­ev­er, decried the leg­is­la­tion as hand­cuff­ing state reg­u­la­tors at the risk of Kentuckian’s health and lives. 

Audrey Ernstberger, a lob­by­ist with the envi­ron­men­tal legal group Kentucky Resources Council, told law­mak­ers the bill replaces “pre­cau­tion­ary prin­ci­ples with a body count requirement.” 

Nick Hart, the water pol­i­cy direc­tor for the envi­ron­men­tal non­prof­it Kentucky Waterways Alliance, told law­mak­ers it was “pro­fes­sion­al­ly and moral­ly uncon­scionable” to wait for peo­ple to become harmed before issu­ing a new regulation. 

The com­mit­tee vot­ed to advance the bill to the full Senate by a vote of 11 to 2. All Republicans vot­ed in favor, while the two Democrats vot­ed no. 

Elkins, read­ing from pre­pared state­ments, spoke to the com­mit­tee while sit­ting beside lob­by­ists rep­re­sent­ing the Kentucky Manufacturers Association, the Kentucky Chemistry Council and the Kentucky Chamber of Commerce. Elkins said there’s been increas­ing pub­lic atten­tion to “emerg­ing chem­i­cals of con­cern and their poten­tial for per­ceived impact on human health and the environment.” 

“There is an inher­ent risk that fast devel­op­ing media cov­er­age of immi­nent chem­i­cals, of emer­gent chem­i­cals or oth­er sub­stances of poten­tial con­cern could pres­sure some state agen­cies to hasti­ly adopt cost­ly reg­u­la­tions dri­ven by unfound­ed fears or flim­sy sci­ence rather than rig­or­ous sci­ence, sci­en­tif­ic stud­ies and lit­er­a­ture,” Elkins said. 

Elkins said SB 178 would instead pro­mote “sound sci­ence and reg­u­la­to­ry deci­sion mak­ing” and “sta­bil­i­ty for busi­ness­es by pro­vid­ing clear guid­ance on com­pli­ance that is ratio­nal and attainable.” 

The reg­u­la­tors that SB 178 appears to impact include offices and divi­sions with­in the Kentucky Energy and Environment Cabinet that reg­u­late water and air pol­lu­tion, reg­u­la­tors with­in Kentucky Cabinet for Health and Family Services and local reg­u­la­tions over­see­ing waste man­age­ment. Elkins is list­ed on his leg­isla­tive pro­file page as being the CEO of Central Kentucky Hauling, a sol­id waste man­age­ment company. 

‘Professionally and morally unconscionable’ 

Environmental advo­cates blast­ed the hur­dles placed in SB 178 as unnec­es­sary and harm­ful to pub­lic health, urg­ing law­mak­ers to instead let state envi­ron­men­tal reg­u­la­tors make deci­sions under the cur­rent reg­u­la­to­ry framework. 

Ernstberger, the Kentucky Resources Council lob­by­ist,  said SB 178 would mean “agen­cies can no longer act when there is cred­i­ble risk” from an emerg­ing envi­ron­men­tal or pub­lic health threat. 

She also said the state already has a “robust” review process for reg­u­la­tions that involves the state leg­is­la­ture. She also said broad lan­guage in SB 178 could par­a­lyze state agen­cies from issu­ing new reg­u­la­tions to avoid poten­tial lit­i­ga­tion over whether a reg­u­la­tion meets the new hur­dles in SB 178. 

Erin Haynes, a pro­fes­sor of pre­ven­tive med­i­cine and envi­ron­men­tal health at the University of Kentucky, said in tes­ti­mo­ny that the require­ments put forth in the bill did not pro­mote “best avail­able sci­ence,” argu­ing that by requir­ing a diag­no­sis of dis­ease for a new reg­u­la­tion would be “com­plete­ly throw­ing out the field of expo­sure sci­ence and envi­ron­men­tal health.” 

The sec­re­tary of the Energy and Environment Cabinet also sent Elkins a let­ter on Tuesday oppos­ing SB 178, argu­ing the bill is redun­dant to some require­ments already in state law and would pre­vent the cab­i­net from act­ing to pro­tect Kentuckians. 

Robin Hartman, a spokesper­son for the envi­ron­men­tal cab­i­net, in a state­ment said SB 178 would “hin­der the state’s abil­i­ty to pro­tect Kentuckians, espe­cial­ly in cir­cum­stances when evi­dence over­whelm­ing­ly shows that expo­sure to cer­tain pol­lu­tants increas­es risk of disease.” 

“State and local lead­ers know the needs of our com­mu­ni­ties best, and we should pro­tect the abil­i­ty to respond appro­pri­ate­ly when need­ed,” Hartman said, men­tion­ing the Beshear admin­is­tra­tion was not con­sult­ed as SB 178 was being drafted. 

Potential work ahead

Some Republican sen­a­tors, despite vot­ing to advance the bill, sug­gest­ed it needs more work after hear­ing the opposition. 

Sen. Robin Webb, R‑Grayson, said giv­en her back­ground work­ing in the coal min­ing indus­try, she con­sid­ers “pub­lic health safe­ty” to be a top concern. 

“I appre­ci­ate the intent of this. I think we do have a severe prob­lem with reg­u­la­to­ry author­i­ty here and incon­sis­ten­cy,” Webb said. “I think there’s a bal­ance to be struck here. Some of the points that are made are valid ones, and I think we could maybe improve this product.” 

Sen. Phillip Wheeler, R‑Pikeville, said he sup­port­ed the intent of the bill but that “we don’t need to go back to the days of rivers catch­ing on fire.” 

Senate Minority Leader Gerald Neal, D‑Louisville, said the bill needs a lot more work to be “pro­tec­tive of our cit­i­zen­ry and yet pro­mot­ing, enabling indus­try to thrive.” 

Neal rep­re­sents West Louisville includ­ing neigh­bor­hoods near Rubbertown, a com­plex of chem­i­cal plants that have long been the sub­ject of com­plaints from the adja­cent neigh­bor­hoods and beyond. He said there are indus­tries in his Senate dis­trict that have ​​”clear­ly adverse­ly affect­ed” his con­stituents’ health. 

“Some of that still per­sists going for­ward. So that bal­ance piece is a tricky kind of busi­ness,” Neal said. 

Lloyd “Rusty” Cress, a lob­by­ist with the Kentucky Manufacturers Association and Kentucky Chemistry Council that’s back­ing the bill, told law­mak­ers that he did not know how “any­one could argue against want­i­ng their reg­u­la­to­ry schemes with all the penal­ties that are involved with envi­ron­men­tal issues to not be based on the best avail­able science.” 

“I think it’s real­ly impor­tant to under­stand the con­cepts of the best avail­able sci­ence,” Cress said.