Rep. Joshua Watkins, a Democrat representing West Louisville, voted against House Bill 137 in committee. Opponents say the measure would tie the hands of citizens and government officials in policing air pollution. (Kentucky Lantern photo by Liam Niemeyer)
FRANKFORT — Kentucky lawmakers are advancing an industry-backed bill that could exclude evidence gathered by citizens and community groups from being considered in proceedings to enforce air pollution rules.
Supporters tout it as a way to make sure only “legitimate” data is used before penalizing industry. But environmental advocates fear the legislation would undercut community air monitoring efforts in Kentucky and officially discount complaints from the public.
House Bill 137, primarily sponsored by Rep. Jim Gooch, R-Providence, is set to be voted on by the GOP-controlled Kentucky House of Representatives after clearing a committee last week.
The bill would apply to the Louisville Metro Air Pollution Control District, which regulates air pollution in Jefferson County, and the Kentucky Energy and Environment Cabinet, which regulates air pollution in the rest of the state. It would put new limits on what they could consider in enforcement proceedings against alleged violations brought by an agency or citizen.
The bill says only information gathered through methods approved by the U.S. Environmental Protection Agency or methods that produce “scientifically defensible and quality assured data” accepted by the EPA would be admissible in an enforcement proceeding.
Gooch told his fellow committee members last week that outside groups “have an agenda” and that their air monitoring “may try to reflect whatever that agenda may or may not be.”
The bill passed the House Natural Resources and Energy committee with the support of all present Republicans and two Democrats, Rep. Erika Hancock of Frankfort and Rep. Adam Moore of Lexington. Two Democrats who represent West Louisville, Rep. Beverley Chester-Burton and Rep. Joshua Watkins, voted against the bill. West Louisville is next to Rubbertown, the location of chemical plants that have long been the subject of complaints from the adjacent neighborhoods and beyond.
Lloyd “Rusty” Cress, a lobbyist representing the Kentucky Association of Manufacturers (KAM) that’s backing the bill, told the Lantern it’s similar to legislation that became law in Louisiana last year that put limits on the use of community air monitoring data by regulators.
But unlike the Louisiana law, Cress said HB 137 bill doesn’t “specifically call out community monitoring.” Another bill that moved through the West Virginia legislature but ultimately didn’t become law also put limits on the use of community air monitoring data by regulators.
“The community has the right to monitor all they want,” Cress said. “We just want to make sure that they are utilizing appropriate equipment and getting trustworthy data. They don’t have to be scientists, but we do hope that they would use data that’s quality assured.”
Cress, who serves as executive director of the Kentucky Chemical Council housed within KAM, said regulators should be using “legitimate data” for enforcement proceedings given the “significance of the penalties associated with alleged violations” and that the bill wouldn’t prevent Kentuckians from making complaints of odors, emissions and other air pollution to regulators.
Gaps in air monitoring
Environmental advocates, however, are concerned the legislation is written so broadly that it could still undermine grassroots efforts to monitor air pollution and limit evidence that could be presented in enforcement proceedings.
Byron Gary, an attorney with the environmental legal group Kentucky Resources Council that opposes the current version of HB 137, worked at the Louisville Metro Air Pollution Control District from 2014 until 2023, coordinating enforcement actions, updating the district’s regulations and ensuring it was complying with the Clean Air Act.
Gary told the Lantern he thinks the bill could end the ability of environmental protection officials to use complaints submitted by community members in enforcement actions “whether it’s verified by other sources or not.”
It could also tie the hands of inspectors in some cases, he said. Louisville’s air pollution regulator verifies “nuisance complaints” by sending out a district officer to smell the odor or see the alleged emissions — something that is not considered a “reference method,” or a formal means of sampling air pollution, by the EPA, but is now grounds for the district to cite a violation.
“It’s simply common sense. You smell an offensive odor or you see dust coming across a line, and that is a violation. That’s not an EPA reference method,” Gary said. But that would change if the bill becomes law, he said, as agencies could then be barred from citing a violation under those circumstances.
Industries are responsible for monitoring their own emissions, Gary said. The EPA previously noted in revisions to the Clean Air Act in the 1990s that those company-controlled tests were infrequent and “inadequate to ensure that sources continuously stay within their emission limits.” The rise of community groups using affordable air monitors such as PurpleAir is revealing gaps in the network of air monitoring and where potential violations might be, Gary said.
Attorneys with the Kentucky Resources Council also are concerned the legislation could conflict with a provision in the Clean Air Act that allows for “credible evidence,” even if it’s not from a formal data collection method, to be used in enforcement actions — something that Cress, the lobbyist for manufacturers, disputes.
“I don’t know what could be more credible than data that is scientifically defensible and quality assured,” Cress said.
The leader of a grassroots organization in Louisville pushing back against air pollution from chemical plants in Rubbertown sees HB 317 as detrimental to her community.
Eboni Cochran, co-director of Rubbertown Emergency ACTion, told the Lantern she believed the bill would significantly limit the ability to use low-cost tools community members have to enforce air pollution regulations, such as taking photos and videos of air pollution violations and using PurpleAir monitors.
“It’s important for us to have varying tools, in addition to our lived experience, so that our arguments can be seen as legitimate and can be verified,” Cochran said. “They’re trying to remove those tools that we use to verify that we are being harmed.”
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