The regulations, which will be filed in final form by the Cabinet after review of the comments received, have been attacked by industry groups as being too onerous, and the standards to which the property must be cleaned or managed, too rigorous. KRC disagrees with that assessment, as reflected in the attached comments.
It is anticipated that this issue will become a legislative matter in the next session or the one thereafter, since industrial advocates have attempted to lower the bar for cleaning up its contamination during almost every session since remediation and management of contamination in lieu of cleaning up contamination to background levels, was first allowed as an option in this state. KRC believes that flexibility in the management options should be allowed but that the standard to which the property is managed to avoid harm must be fully protective of health and the environment as is required in law, and must be conservative to account for the substantial uncertainties in understanding of the effects of single and multiple chemical exposures.
Kentucky Resources Council, Inc.
Post Office Box 1070
Frankfort, Kentucky 40602
(502) 875-2428 phone (502) 875-2845 fax
August 28, 2002
Michael S. Mullins
Division of Waste Management
14 Reilly Road
Frankfort, Kentucky 40601
Re: Proposed Regulations Implementing
Voluntary Environmental Remediation Act
Dear Mr. Mullins:
These comments are submitted on behalf of the Kentucky Resources Council, Inc. concerning the proposed regulations implementing the Voluntary Environmental Remediation Act (VERA), which was enacted during the 1991 Regular Session of the Kentucky General Assembly and is codified at KRS 224.01-512 through 224.01-532.
The Council has reviewed the proposed regulations, and with the exceptions noted below, supports the approach to remediation outlined under the regulations. They are consistent with the statute, and provide a process that will allow an owner of contaminated property to predictably enter, characterize, remediated and exit the regulatory system on a voluntary basis.
Before making some general comments concerning the proposed regulation, KRC believes that it is important to properly frame this regulation. This is not a "Brownfields" law that addresses mildly contaminated abandoned urban sites. It is not an "economic development" law. It is a law that may have started with that goal, but was substantially broadened at the request of the industries who have contaminated their lands based on undermanagement of hazardous substances in the past, and who wanted to be included in a program that would allow, with a few exceptions, substantially contaminated properties to be remediated by those who caused the damage, and who wanted to be insulated by covenants not to sue from further action.
The law mandating adoption of regulations to procedurally implement VERA called for the adoption of regulatory standards for remediation of hazardous substances, pollutants and contaminants. It expressly provides for flexibility in development of remediation options for managing hazardous releases in place, but allows no cutting of corners, no regulatory or linguistic sleight-of-hand by which dirty becomes clean, but instead demands that the remediation be demonstrated to be protective of public health and the environment.
KRC understands that some of the heavy industries who own and control properties that they have contaminated over the years, don't like the proposed regulations and believe them to be onerous both in the site characterization and remedial standards.
It is no surprise that those who own or control properties on which hazardous substances have been leaked and which have migrated into the land, air and water, don't like the proposed regulations. Since the early 1980's, they have been engaged in an unrelenting effort to shift more of the cost of accounting for their contamination of private and public lands onto the taxpayers and onto other property owners. In years leading to the enactment of VERA, the polluting industries proposed and advocated various iterations of a voluntary remediation law that included setting the point of compliance for remediation on other's property, rather than within the contaminated property boundary. Efforts to prevent or delay public or neighbor notice of activities on contaminated properties were advanced. And, most pertinent to today's hearing, efforts to lower the bar for walking away from contamination and shifting the costs of non-remediation to subsequent landowners and neighbors were advanced.
It is of critical importance, in reviewing the two areas of the proposed regulation that industry most object to – those of the adequacy of the site investigation and of the remediation standards, to bear these points in mind:
First, this program is not limited to mildly contaminated abandoned sites where an effort is being made at urban revitalization. Industry successfully broadened the scope of this program to include sites that were being proposed for inclusion by the same company that had contaminated the land, air or water resources in the first place. The sites eligible for this program are not merely those abandoned or blighted former commercial or industrial sites for which no responsible party remains.
There are many seriously contaminated sites still actively used or held by companies that are seriously contaminated, and for which there is no intention by the company to divest themselves of the land or to reuse it in any beneficial manner. Those companies are given flexibility under this program to manage the contamination in place, but should not be allowed to receive insulation from their responsibility to clean-up their pollution to levels fully protective of the public and environment. The polluting party who enters the VERA program is getting a substantial benefit to which he is not entitled – freedom from further prosecution or liability to the state – an extinguishment of the ability of third-parties to compel the state to take action on their behalf for remediation caused by that party. The thorough characterization and proper selection or protective goals is the cost of participation.
Second, in approaching the establishment of remediation standards for contamination, humility in the face of substantial scientific uncertainty is advisable, and conservatism in the selection of remedial standards is justified. There are substantial uncertainties in the toxicological field regarding the standards at which chronic low-dose exposure to toxicants produce no adverse effects. Particularly for older chemical compounds whose market entry predated federal laws, little data exists concerning both cancer and non-cancer neurological physiological effects. Of the over 70,000 chemicals in the market, complete human health data exists for about 2%, partial data for about 14% and less about the remainder. Even less is known about ecological impacts of single toxicant exposure.
The reality is, also, that exposure to these compounds does not occur in a vacuum, but instead, these sites involve a mix of several toxicants, and the additive, synergistic and other effects of multiple chemical exposure are but dimly understood. Understanding of additive and synergistic effects is in its relative infancy, and ATSDR has just released an assessment of Joint Toxic Action of Chemical Mixtures reflecting the uncertainties in understanding such interactions.
Third, establishing thresholds for characterization and remediation that are not thorough and sufficient, does a grave disservice to the program applicant, subsequent purchasers, neighbors, and the next generation who will inherit our mistakes. To the extent that we shift costs of non-remediation or improper management off-budget by issuing letters absolving responsible parties of remediation responsibility, we limit the land utilization of the next generation and shift to that generation the costs of second-generation remediation. A contaminated property that is today poorly characterized and left unremediated because it will be reused as a parking lot is doomed to remain utilized at that low-end of value, because the next generation will have to pay for remediation to higher uses and we will have closed the door to responsible party funding of that remediation.
This program should not become a vehicle for shedding liability and responsibility for fully characterizing and accounting for site contamination and fully accounting for the remediation of contamination to protective levels and proper management of any wastes left in place.
Beyond the inequities of shifting costs off-budget and saddling the next generation with costs because we have inoculated the polluters from responsibility for their wastes, the effort to force the state to accept shoddy remedial investigation and inadequate remediation standards will not meet the program goals of revitalizing contaminate properties for new use. Industry may prevail in this decades-long battle and may force the state to use underprotective standards. They may prevail in forcing, through artifices such as so-called Science Advisory Boards stacked with consultants beholden to industry, underprotective remedial investigation procedures leading to issuance by the state of bullet-proof letters of no further remediation or covenants not to sue.
But all that will be accomplished is a shifting of the conflict to other forums. Even though the state might be forced to forego enforcement action, the Kentucky Constitution guarantees an aggrieved party, including neighbors and subsequent purchasers, a right of action against the polluter that cannot be extinguished. The state itself may incur liability for the taking of other's lands where it approves a release of liability for lands where contamination migrates onto or under other's properties, and shrouds those contaminated lands with immunity from further state prosecution.
Additionally, if the polluting industries are able to shift their costs and to force issuance of covenants not to sue notwithstanding the presence of substantial residual contamination, the remaining risks will be accounted for by the lending institutions through higher collaterization requirements and a greater reluctance to take risks in lending on such sites. The only avenue that is responsible is to fully characterize the site contamination, to choose target goals that are fully protective of public health and the environment, and to allow flexibility in management (including removal, remediation or management in place) of those wastes provided that accountability accompanies management flexibility.
Forcing the state to call a dirty site clean serves no purpose except that of the polluter seeking to cut losses and to shift their costs onto the public domain. We should not, as a state, be party to such a fraud.
1. The General Assembly has directed adoption of remediation standards under KRS 224.01-400, which will apply more broadly than under VERA applications and must fully conform to the criteria outlined in KRS 224.01-400(21), accounting for ecological as well as human health effects from exposure to individual and multiple toxicants.
In responding to criticisms that the remediation standards in Section 7 of the regulation are inconsistent with legislative intent to encourage economic development, it is instructive to review the requirements of the statute concerning remediation standards.
The General Assembly was clear in demanding that the characterization and remediation of sites included under this voluntary program conform to the goals of state law regarding hazardous substance remediation. The standards found in 224.01-400 are not to "do the minimum that any state allows" or "to protect only public health" but instead demand that whatever option is chosen to address a contaminated property, that it be fully characterized and remediated in order to "protect human health and the environment," while maintaining consistency with the development of scientific knowledge and any federal mandates. Where removal of the hazardous substances does not occur, any remedy chosen must as mandated under existing state law at KRS 224.01-400(21) be "protective of human health, safety and the environment" taking into consideration:
* the characteristics of the substance, including toxicity, persistence, fate and transport dynamics, bioaccumulation, biomagnification, and potential for synergistic interaction and with reference to the media into which the release has occurred;
* the hydrogeologic characteristics of the area;
* proximity, quality and current and future uses of surface and groundwaters and the potential effects of residual contamination of such waters;
* an exposure assessment; and
* chronic and acute health effects and environmental consequences to terrestrial and aquatic life of the exposure through both direct and indirect
Any proposal in these regulations that does not provide for characterization of releases sufficient to allow for these determinations, is inconsistent with the express mandate of the General Assembly as reflected in KRS 224.01-512(5) (which defines remediation as both characterizing the release and taking actions necessary to correct the effects of the release on the environment as required by KRS 224-01-400. Additionally, VERA directs that the characterization and corrective action plans conform to KRS 224-01.400 at several places throughout the statute (KRS 224.01-518(2)(a)1-2, KRS 224.01-520(3).
The legislature could have been no clearer as well in distinguishing between characterization and remediation. While KRS 224.01-530(3) allows flexibility in the approaches to management of the contamination of these sites, by allowing consideration of the current and proposed land use, zoning and nature and extent of the contamination in selecting management options and directs the Cabinet to adopt regulations allowing an array of management options, the General Assembly instructed that the development of the regulatory standards under KRS 224.01-400 be protective of human health, safety and the environment.
The Cabinet is thus without the authority to adopt regulations that provide less than these requirements, regardless of what another state may use, and regardless of how convenient or economically advantageous it might be to the polluter to currently do less.
2. Region 9 Standards Cannot Be Used As Cleanup Or Walk-Away Standards for Remediation And Must Be Adjusted As PRGs To Reflect Areas Where The General Assembly Has Mandated Protection Including Groundwater, Ecological Receptors And Indirect Pathway Exposure
The legislature was equally clear in demanding that the numerical values contained in the "Region 9 Preliminary Remediation Goals" document are screening levels and shall be used in conformance with the guidance set out in the Region 9 documents.
The legislature made equally clear their intent regarding one of the issues hotly and lengthily debated during the adoption of VERA – whether the Region IX standards were cleanup levels for individual contaminants at the site. The statute prohibits use of the standards as cleanup standards for individual contaminants, so that if a 'cleanup standard" is adopted that contains the same numerical values, it must be independently justified using sound toxicological evidence and conservative extrapolation from that data to account for the substantial uncertainties of the more subtle adverse physiological effects of low-dose exposure to toxicants.
In directing that the Region IX standards be used in conformance with the guidance, the and in directing that the remediation standard not simply adopt Region IX numbers (and in fact prohibiting such an action) but rather than the standards meet the multiple factor criteria of 224.01-400(21) in protecting public health and the environment where complete removal was not proposed, the General Assembly obligated the state to "fill the gaps" in the region IX guidance in order to fully protect public health and the environment. For the guidance makes clear that there are significant limitations to its use. For example, the guidance states that:
* The goals are "generic" and are calculated "without site specific information"
* They are not de facto cleanup standards and should not be applied
* They focus on common exposure pathways and admittedly do NOT consider all exposure pathways. For example, they consider direct ingestion of soil and water, dermal absorption and inhalation, but do not consider uptake in the food chain, through growing crops, nor other indirect pathways that the General Assembly has specifically demanded be considered in Kentucky under KRS 224.01-400(21), where it defined what factors are to be considered in determining what is "protective of human health and the environment." The PRGs must therefore be adjusted to account for biomagnification, bioaccumulation, and indirect pathway exposure in food.
* They do NOT consider ecological receptor impacts or groundwater impacts, which are two areas that the General Assembly has mandated must be evaluated in determining what is "protective of human health and the environment" under KRS 224.01-400(21). As screening levels, the Region IX goals must be adjusted if the legislative mandate that the goals be used in conformance with the guidance is to be met, since Region IX stated plainly that the PRGs are specifically not intended to be stand-alone decision-making tools nor a substitute for baseline risk assessments.
* The guidance is not a formal agency action, nor will it provide insulation from a third-party lawsuit that the site was inadequately screened or remediated, particularly since it admittedly does not address several pathways of significant to a rural state with ecologically sensitive resources and with 29% of the state population relying on groundwater supplies.
* Both cancer and non-cancer values should be used where the PRGs are used for site screening.
* Care must be used in choosing soil screening levels to account for sites where little or no dilution or attenuation is expected. In a state where a significant amount of the groundwater resources are in karst /solution flow or secondary permeability aquifers, the most conservative assumptions concerning soil screening and attenuation must be employed in order to be consistent with the guidance;
* The PRGs must be adjusted to account for
- potential ecological concerns
- land uses other than residential or industrial
- exposure pathways not considered in development of
the PRGs including groundwater impact, local fish consumption,
high fugitive dust levels, indoor contamination potential
- unusual site conditions such as large areas of contamination.
high fugitive dust levels or the potential for indoor air
The EPA Guidance further references documents to assist in evaluating pathways that are not currently addressed by Region 9 PRGs.
In short, the guidance advises throughout, and summarizes at page 10, the potential misapplications of the guidance. For the Cabinet to adopt the numerical values without considering and adjusting those values to account for matters not included in the development of the PRGs, such as multiple chemical additivity, ecological receptors, groundwater, and site specific conditions, does violence to the guidance and to the legislative mandate.
3. Multiple Chemical Exposure Must Be Accounted For In Determining Screening And Remedial Levels
As the Region IX Guidance acknowledges, additivity of multiple chemical exposures must be considered when screening multiple chemicals. ATSDR has recently released a draft Guidance Manual for the Assessment of Joint Toxic Action of Chemical Mixtures, and that document and the technical references therein are incorporated here by reference. In that document, ATSDR reflects on what the Region IX guidance also notes – that while "most toxicological testing is performed on single chemicals[,] human exposures are rarely limited to single chemicals." Id, at p.1. In reviewing and accounting for multiple chemicals, additivity, synergism, potentiation, antagonism, inhibition and masking must be accounted for in screening and establish remedial goals, and the three mechanistic bases for toxicological interactions: chemical-chemical, pharmacokinetic and pharmacodynamic, must be evaluated. Id. at 5.
4. VERA Was Not Intended And Cannot Be Used To Selectively
"Sanitize" A Selected Set of Hazardous Substance Releases On A Site
One issue raised by industry and specifically rejected during negotiations on VERA was whether an applicant, holding a property on which several hazardous substance releases had occurred, could artificially define a "site" in order to seek a covenant not to sue for an area with respect to one pollutant to the exclusion of others released on that site.
VERA is not a liability-laundering bill through which responsibility for further remediation of contaminated sites can be relieved for selective pollutants to the exclusion of other known releases. The law requires the applicant to enter a property, not a "site" into the VERA program, and to fully characterize all releases on sites within that property in order to be eligible for VERA, and cannot selectively pick and choose a subset of those contaminants.
5. Suggested minor clarifications
The definition of "area of concern" in Section 1(1) needs minor clarification to reflect that it includes "areas within the property where . . . ." There appears to be some confusion as to whether a VERP applicant submitting a tract of land for review under the program would have to include other areas of concern outside of the property.
On a related issue, where an applicant submits a VERP with respect to a property and it appears that the release of the hazardous substance has contaminated beyond the tract boundaries, the Cabinet must have the flexibility to require the applicant to adjust the property boundary to include the entire "site" or to reject the application and utilize other available remedies.
We have no illusion that industry will seek to have these regulations rejected in order to put the issue in play during the upcoming legislative session in order to seek lessen further the remediation standards and to narrow responsibility for characterization and remediation of sites that they have contaminated.
We are equally as confident that the legislature will reject, as they have in the past, any efforts by parties who have contaminated their lands and the lands of others, to march behind the "brownfields" banner while seeking to hide their contamination in plain sight by mandating that dirty is clean and dangerous, safe.