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PO Box 1070, Frankfort, KY 40602  Phone 502.875.2428, Fax 502.875.2845

Comments On UST Reg Revisions Oppose Leaving Off-Site Contamination In Place  Posted: June 1, 2006

May 31, 2006

Bruce Scott, P.E., Director
Division for Waste Management
14 Reilly Road
Frankfort, Kentucky 40601


Re: Proposed Amendments, UST Regulations
32 Administrative Register 11 (May 1, 2006)

Dear Director:

What follows are the comments of the Kentucky Resources Council, Inc. concerning the amendments and revisions proposed for the state Underground Storage Tank Program. After reviewing the proposed amendments and other revisions to the regulatory program, KRC offers these comments, referenced by regulation or topic as appropriate:

401 KAR 42:005

KRC supports the retention of the term “corrective action” rather than the earlier-proposed change to the use of “remedial action,” since “corrective action” is defined in KRS 224.60-115(4). Since reimbursement for actions taken with respect to releases is tied to “corrective action,” the use of a new undefined term would have potentially created questions concerning eligibility for reimbursement.

KRC also supports the revision to the definition of “UST facility” to clarify that the facility is not the property on which the UST system is located but is instead all of the tanks and associated piping located on a property or contiguous properties. The distinction established in statute should be maintained – the UST facility is located on the property; but it is not the property itself.

KRC is concerned, however, that the term “site” is defined in the proposed revision to be coterminous with “UST facility.” The term “site” no where appears in KRS Chapter 224.60, other than the requirement that an inspector be “on-site” during tank removal. Unlike the term “waste site or facility,” as generally defined in KRS Chapter 224, the term “facility” in the UST program refers to the tanks owned by an owner or operator and located on a piece of or contiguous pieces of property, and the corrective action obligation extends to releases from tanks, not to contaminated “sites.” In order to remain consistent with the underlying statute, it must be made clear that the releases from the facility (the aggregation of tanks on a property) are subject to corrective action and that the release must be remediated both on the property and off, with the point of compliance remaining on the property rather than beyond the property boundary on which the facility is located.

Since “offsite” means beyond the point of compliance, one infers that “site” or “on-site” should be coterminous with the property on which the facility is located. If “Site” has no use, it need not be defined. If it is to be used, it should be defined with reference to the property rather than the equipment.

The use of the term “UST system” and “UST system release” is of concern to KRC as well, with respect to reimbursement for corrective action. While KRC strongly supports the adoption of standards governing the monitoring of the interstitial spaces between primary and secondary tank containment for registered, compliant tanks, the expenditure of limited reimbursement funds from the Petroleum Storage Tank Fund should be limited to those purposes intended by the General Assembly, which is the funding of corrective action for releases to the environment and from environmental emergencies. To the extent that there is a detected failure of primary containment, it is the obligation of the tank owner and operator to utilize their funds to address and correct the problem; not the fund. Clear delineation should be made between the use of UST system release to address those instances of releases within an UST Tank, and those releases that are subject to corrective action reimbursement.

KRC appreciates the concern for requiring monitoring of and reporting breaches of primary containment, and strongly supports same, but the obligation to report those primary system failures should be separately imposed as an additional obligation, since “releases” that are eligible for reimbursement are releases to the environment, not within the system itself, and the fund was never intended to prospectively underwrite remedial action from compliant replacement primary system failures.

Finally, “point of compliance” should be clarified in the definition to be the boundary on which the UST facility is located, rather than the property boundaries of the UST facility, since the facility is the equipment, not the land.

401 KAR 42:011 Section 2 (c)(2)(a)

KRC supports the retention of the term “corrective action” here and elsewhere in the remainder of the regulatory package, wherever “corrective” action had been proposed to be replaced by “remedial” action.

The use of “UST system release” in place of “release” does not appear to change the effect or scope of the rule, since an UST system release is from an UST system, which is the aggregation of underground tanks an associated equipment and piping.

A typo on Section 2(c)(2)(a) – “may be installed at a UST facility” should read an UST facility.

Finally, with respect to new Section 1(3), it should be clarified whether the agency intends that the requirements of 401 KAR Chapter 42 be met for each UST system at a facility where separate tanks are used for dual-purposes, one of which is regulated, or intends only to require compliance for a particular tank that is used for multiple purposes, one of which is regulated. Where there are multiple tanks at a facility, and they are storing petroleum substances, but only some are regulated, the owner should be required to demonstrate how releases regulated under this program will be addressed.

401 KAR 42:020

The use of the term “UST system” regarding registration could give rise to unintended compliance arguments, since the obligation to register falls by statute on the owner of “any petroleum storage tank” rather than on the owner of an “UST system” or an “UST facility.” Some language clarifying that the owner of any petroleum storage tank is obligated to register each tank as an UST system at an UST facility, should be included.

401 KAR 42:060

Section 2 should be revised to require a specific limit on the length and number of extensions that can be granted, and the requirement that the cabinet determine that the extension will not have a detrimental effect on human health or the environment should be a written finding in the file.

The Section 3 “no further action” letter should clarify that the “no further action” letter is issued only with respect to the release that was reported, and only to the extent that the site characterization was complete and the corrective action was undertaken as approved by the agency, and that the letter does not preclude the agency from directing further action be taken if the information provided was incomplete or inaccurate, or where such further action is needed to protect human health or the environment.

The use of “site” rather than “Underground Storage Tank” and “facility” is of concern since “site” is nowhere defined by statute with respect to this program.

401 KAR 42:070

KRC is concerned with the language in Section 2( formerly 3) allowing an owner or operator of an “UST system” to end release detection “as long as the UST system is empty.” Prior to ending release detection the owner or operator should be required to document the method(s) by which it was determined that the system is empty (including associated piping) and must certify that fact.

401 KAR 42:080

KRC vigorously opposes the proposed Section 2 language that would allow contamination to be left unremediated under property on which an UST facility is located and under adjoining properties simply by virtue of securing a waiver from an adjoining property owner. The obligation of corrective action is intended to protect both the integrity of other property and the environment, and securing a waiver from a current adjoining landowner does not protect the potential future uses of that land nor the environment. Nor is such a proposal protective of current uses, since contamination left in soil off-site at levels above those deemed protective for unrestricted use could contaminate off-site water supplies, or result in injury or exposure to those utilizing the adjoining property such as renters.

Given the existence of a reimbursement mechanism for UST releases, and the lack of any general mechanism to fund remediation of releases, the proposal is poor public policy as well, since in the future, if a subsequent landowner wishes to utilize the property that has remained contaminated, that person will incur the remediation costs and will not be eligible for reimbursement.

It is also unclear whether the proposal would allow offsite contamination of groundwater or of soil that will be in communication with groundwater (i.e. fracture flow or unconsolidated aquifers) to remain contaminated. No private landowner has the power to sanction contamination of waters of the Commonwealth, and any such proposal would have to be premised on a demonstration (with monitoring to verify) that allowing soil to remain in place will not result in off-site groundwater contamination.

Finally, the proposal is less than responsible since it does not require any notice either to the current occupant of the adjoining property, nor to any subsequent purchasers, that the current offsite landowner has agreed to allow their property to remain contaminated. If the agency moves forward with this ill-considered proposal, a restrictive easement of record must be recorded notifying future landowners.

The provision should be removed. The public interest is best served by completely eliminating both the source and the contaminated soil.

Since the standards for corrective action are incorporated by reference, KRS cannot tell whether the Cabinet has proposed substantive changes to them.

KRC urges the agency to revisit and modify the corrective action standards in order to: (a) assure that the standards for closure for the chemicals and metals remain protective of public health and the environment in light of any new toxicological information and exposure standards that have been published or revised for benzene, toluene, ethylbenzene and xylene, since the standards were first adopted; and (b) to incorporate MTBE as a contaminant of concern and to establish closure standards for MTBE.

According to the Lawrence Livermore National Laboratory, in a report prepared for the California Water Resources Board, the U.S. Department of Energy, and the Western States Petroleum Association, MTBE persists longer and spreads faster than aromatic hydrocarbons such as benzene, and “may present a cumulative contamination hazard.” According to the Environmental Reporter, the study assessed groundwater at 236 UST tank sites in 24 counties of California and found MTBE at 78% of the sites. Therefore, the assumptions in the UK study regarding the duration of exposure and attendant cancer risk are not valid with respect to MTBE, since it persists longer and is more mobile.

In light of the potential health harm presented by MTBE, KRC urges the agency to: (a) modify sampling protocols to require UST owners and operators to include MTBE sampling for soils and groundwater, and to report those sample results; (b) revise the “risk assessment” model to include MTBE in setting human health and groundwater protection goals for acceptable corrective action, and to reevaluate the assumptions of the report (for which the exposure assumptions were based on benzene, which degrades in a significantly shorter time and is dispersed less widely than MTBE); and (c) assure that all future closures of USTs comply with the EPA guidelines for MTBE in drinking water (and groundwater).

401 KAR 42:290

The citation to 224.60-13(1) in the statutory authority section probably should be 224.60-130(1), which is the subparagraph that calls for the establishment of ranking criteria for corrective action.

Concerning Ranks 2-5, the language should be modified slightly, since as the subparagraphs read now, they imply that Ranks 2-5 are for sites where groundwater has been contaminated by the UST and wells, springs or cisterns have been contaminated by something else. If I understand the ranking intent, it is to identify and rank those sites where the groundwater has been contaminated but where the groundwater is not being used, of where the contamination has not reached those users.

The ranking should delineate and give appropriate priority to contamination of supplies currently being used, contamination which left unchecked could result in contamination of those supplies, and contamination to aquifers not currently being use for domestic or other beneficial uses. For example, it might read better to remove “and are not the source of contamination to” and replace the phrase with “but have not resulted in contamination of domestic use wells, springs or cisterns” where you are referring to an aquifer that either is not used or where the contamination has not reached a user.

I would suggest also that you consider the ranking in terms of potential pathways of exposure, and include a new rank for facilities where a release from a petroleum storage tank has migrated beyond the boundary of the property on which the facility is located. The uncontrolled release onto another land creates a potential pathway of exposure beyond the control of the UST owner, and corrective action to remove that source should be prioritized over situations where releases are not currently affecting groundwater and are controlled on site.

In Section 4(3), where written directives have been suspended due to inadequate funding, those who had priority prior for reimbursement prior to the suspension should retain that priority as funds become available for corrective action reimbursement.

401 KAR 42:330

It appears that the Cabinet is proposing to remove all of the eligibility criteria for participation in the small operators tank removal account, other than the number of tanks and the permanence of the closure. KRC supports this simplification of access to the SOTRA account, which better serves the goal of prompt removal and closure of the tanks. The deletion of the other limiting criteria is fully consistent with the authorizing statute, which allows but does not require the agency to distinguish among owners based on income and other criteria.

401 KAR 42:340

KRC supports the inclusion of MTBE within the parameters for which laboratory is required to demonstrate current accreditation. MTBE should be required to be included as a parameter tested and reported by each UST site seeking reimbursement for corrective action, and the Cabinet should develop and revise corrective action standards to assure that releases are remediated based on MTBE in conjunction with benzene, rather than suing benzene alone as the regulatory “driver.”

Thanks for the opportunity to review and comment on these proposed regulations.

Tom FitzGerald

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