Kentucky Resources Council, Inc.
Post Office Box 1070
Frankfort, Kentucky 40602
(502) 875-2428 phone (502) 875-2845 fax
November 26, 2003
Ms. Julia Lightner, Environmental Tech. II
PPA Branch, Division of Waste Mgmt.
14 Reilly Road
Frankfort, Kentucky 40601
Re: Proposed Revision to Administrative Regulation
401 KAR 47:030 Environmental Performance Standards
Dear Ms. Lightner:
These comments are submitted on behalf of the Board and membership of the Kentucky Resources Council, Inc., ("Council" or "KRC") concerning the proposed revision to 401 KAR 47:030. The Council has reviewed the proposed revisions to the regulation, and offers these comments:
1. The Council supports the revisions of Section 5 that replace the chart of MCLs with a reference to the drinking water standards and action levels in 401 KAR Chapter 8. The revision will assure consistency between the two lists and will assure that the environmental performance standards maintain currency with the drinking water program standards.
The Council is concerned with two aspects of the proposed incorporation of the Chapter 8 standards, however: first, that the use of MCLs and action levels as opposed to MCLGs (where available) may be underprotective of the rights of adjoining landowners and underprotective of groundwater resources; and second, that the current action levels for lead may be insufficient to protect the most sensitive off-site user of groundwater.
As to the first point, KRC believes that the use of the health-based maximum contaminant level goals, rather than the MCLs, should be adopted as boundary contaminant values. The MCLs are not health-based standards, but instead are point-of-delivery standards that incorporate economic considerations concerning the ability of public and semi-public systems to treat and deliver finished water supplies. In the context of protection of groundwater resources from contamination associated with the management (or under-management) of solid wastes, the considerations underlying the use of MCLs as opposed to MCLGs are not present, since the standards are adopted to assure that private groundwater supplies, which are not usually subject to the same advanced treatment train as are public water supplies, are not contaminated in the first instance.
The use of MCLs at the site boundary in lieu of the more protective MCLGs rewards the polluter by allowing off-site contamination of groundwater resources at levels admittedly above those health-based standards developed under the Safe Drinking Water Act, and could be read to constitute a state-sanctioned taking by physical intrusion into another's property, since allowing contamination at the property boundary will invariably cause contamination beyond that boundary in excess of health standards and will preclude the full range of beneficial uses of the groundwater resource unless the adjoining landowner incurs new costs to treat the contaminated water resource.
For these reasons, KRC encourages the Cabinet to adopt the MCLGs rather than the MCLs as the environmental performance standard action values and the remediation goals for the corrective action requirements for solid waste sites and facilities.
As to the second point, KRC has two concerns: the first is how the Cabinet intends to apply the action levels for lead and copper, and the second, whether the current lead action level is sufficiently protective of young children.
First, the reference in 401 KAR 47:030 to the action levels should instead be a reference to the "concentration values" for lead and copper, since use of "action levels" could be read to mean that the solid waste site or facility should use the statistical sampling approach of 401 KAR 8:300 to determine whether, even in the presence of lead and copper above the concentration values, action would be needed. Stated alternatively, for the purposes of 401 KAR 47:030, the detected presence of lead or copper in a groundwater sample would be indicative of contamination of the resource itself (and not, as in the case of public drinking water systems, contamination from piping), so that the sampling approach of 401 KAR 8:300 should not be applicable.
As to the second issue, the health literature suggests that blood lead levels significantly below the current public health standard (10 ug/dcl) can cause adverse physiological response in particularly sensitive populations (young children, children in utero). The current health literature should be consulted and a concentration standard derivative of those blood lead concentrations that are protective of those sensitive subpopulations should be incorporated.
2. KRC is concerned that the revision to Section 9 (formerly Section 10) proposes to exempt from the environmental performance standards, the open burning of military ordnance. The disposal at military installations and elsewhere of discarded ordnance should be managed carefully, under both the air and solid waste regulations, to assure that the emissions and resulting wastes are properly characterized, controlled and managed. The open burning of surplus ordnance "smudge pots" by the Blue Grass Army Depot during the late 1970's, resulting in the hospitalization of scores of individuals from smoke inhalation, is perhaps the most egregious example of inappropriate undermanagement of surplus or decommissioned ordnance. Categorical exemption of thermal destruction/treatment of ordnance is unjustified and potentially dangerous both from an air quality and solid waste standpoint, since those wastes may contain products of combustion and of incomplete combustion (particularly where chlorinated materials are used as part of the ordnance or chlorinated plastics are used as containment) that are of public health concern. As written the exemption would be broad enough to allow disposal of nerve agent ordnance, and presumably the resulting waste ash, to be exempt; a result plainly not intended by the regulation.
According to the Center for Public Environmental Oversight, http://www.cpeo.org/techtree/ttdescript/detburn.htm:
Open detonation and open burn operations are used to destroy
excess, obsolete, or unserviceable munitions and energetic (i.e., explosive) materials. Open burn and open detonation are subject to increasing regulatory restriction and these techniques may no longer be feasible in the near future. In open burning, materials such as rocket fuel are destroyed by self-sustained combustion after being ignited. In general, electric initiation systems are preferable because they provide better control. In open detonation, explosives and munitions are destroyed by a detonation of explosive charges. In the past, these operations occurred at land surface or in pits. Recently, burn trays and blast boxes have been used to control and contain resulting emissions. In detonation processes the blast box may be below grade and covered with soil to further minimize the release of emissions.
According to the CPEO, there are significant concerns regarding open detonation and open burn operations, including:
* contamination of underlying soil and groundwater with byproducts of incomplete combustion, heavy metals, or incomplete detonation products resulting from open operations;
* uncaptured emissions of hydrocarbons, metals, and other substances from open operations, which could be controlled through use of subsurface processes to minimize emissions release;
* risks to neighboring properties from sparks, flames, smoke, and toxic fumes;
* danger from accidental detonation of explosives, pyrotechnics, and propellants;
* the future hazard from the possibility that some ordnance or energetics will not be destroyed. In particular, bulk detonation may cause "kick out", the ejection of an undetonated device, distributing dangerous ordnance over a wide area. Kick-out can be minimized by the proper placement of multiple charges.
Open detonation is a form of uncontrolled incineration. It is a process that can lead to toxic releases and exposures, and which should not be allowed to be exempt, but should instead be carefully controlled. The Dugway Proving Grounds, which maintains a website, contains significant information concerning advances in controls of the environmental consequences of obsolete munitions and the lack of necessary for any exemption for open detonation and burn operations.
The reference to "ordnance" should be removed, or at least narrowed significantly to allow emergency detonated of encountered unexploded ordnance on military property.
Finally, the exemption for open burning should be limited to "infrequent and controlled burning . . . " in order to allow the Cabinet to extend regulatory control over those cases where the open burning is being proposed in a manner that is not properly controlled and which potentially threatens public health and the environment.
Thank you in advance for your consideration of these concerns.