Kentucky Resources Council, Inc.
Post Office Box 1070
Frankfort, Kentucky 40602
(502) 875-2428 phone (502) 875-2845 fax
January 20, 2004
Michael V. Welch, PE, Manager
Hazardous Waste Branch
Division of Waste Management
14 Reilly Road
Frankfort, KY 40601 By email
Re: Request for LDR Variance
DOE Paducah Gaseous Diffusion Plant
Dear Mr. Welch:
These comments are submitted by the Kentucky Resources Council, Inc. on behalf of its membership, and also on behalf of three families: Ron Lamb, of 10970 Ogden Landing Road, Kevil, Kentucky 42053, Al and Vivian Puckett, 6365 Bethel Church Road, Kevil, Kentucky 42053, and Mark Donham, RR#1, Box 308, Brookport, IL 62910 whom KRC represents in the pending appeal of the Agreed Orders between the Environmental and Public Protection Cabinet and U.S. Department of Energy (including the Agreed Order resolving numerous enforcement actions relating to disposal of hazardous wastes in solid waste disposal facilities by DOE).
KRC opposes the proposed Cabinet action approving the variance from Land Disposal Restrictions for disposal of trichloroethylene (TCE) and trichloroethane (TCA) contaminated soils at the DOE Paducah Gaseous Diffusion plant, and in offers these points in opposition to the grant of the requested variance:
1. The Cabinet is without statutory or regulatory authority to grant the requested variance, since the application regulation governing requests for LDR treatment requirements and restrictions is that contained in 401 KAR 37:040, and there has been no demonstration that the treatment standards for TCE or TCA cannot be met. The general variance provisions of the Cabinet’s regulations cannot be used to “trump” and override the specific restrictions on when a variance can be granted from LDR treatment requirements.
2. The Cabinet is specifically without the statutory or regulatory authority to grant a variance from an otherwise-applicable state regulatory standard based on the assumption that in the future, an admittedly applicable and enforceable treatment standard will be relaxed to a different standard. The grant of a variance in such a circumstance violates the Cabinet’s obligations under KRS Chapter 13A.
3. The Cabinet’s utilization of the informal EPA “contained in” policy violates KRS Chapter 13A as well, since the Cabinet is by state law specifically prohibited from modifying, vitiating, restricting or enlarging state regulation by “policy.” The applicable state regulations define solvent-contaminated soils as hazardous or solid wastes based on concentration of the solvent in the soils, and the Cabinet is without the authority to adopt, out of whole cloth, an unwritten EPA policy of using risk-based levels of contaminants as a determinant of whether the waste must be managed as hazardous. The utilization of what is acknowledged by the applicant to be an EPA policy that has not been codified into regulation, and which has certainly not been incorporated into state regulation, violates state law and state regulations and dramatically weakens management of hazardous wastes in order to accommodate past under-management of wastes in violation of applicable law.
4. Assuming arguendo that a contained-in policy were lawful and that the state agency was authorized to utilize such a policy to avoid the application of concentration-based restrictions on disposal of soils contaminated with hazardous wastes, the policy would have no application to the disposal of soils containing hazardous concentrations of solvents in approved solid waste disposal facilities. To the extent that the applicant seeks to utilize a policy intended to differentiate management of wastes from the surrounding environmental media into which the wastes were released in an uncontrolled manner, such a policy is inapplicable where the hazardous materials were disposed of in a discrete, constructed solid waste disposal facility. In such a case, where disposal of soils contaminated with concentration-based levels of hazardous solvents has occurred, the only lawful and appropriate remedy is removal of the material and disposal in a facility constructed, designed, bonded, and monitored to manage such hazardous wastes.
For any and all of these reasons, KRC vigorously opposes the proposed grant of a variance allowing disposal of excavated soils containing levels of TCE and TCA above the LDR treatment standards, in the on-site solid waste landfill.
Director & Counsel