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

OPPOSE SENATE BILL 2  Posted: February 10, 2001
To: General Mailing List

The City of Louisville, having allied itself with the chemical industry representatives to push an irresponsible "brownfields" bill, is pressing hard to get environmentalist support for their bill. I have heard from numerous sources that they are courting environmental groups in order to drive a wedge among the groups.

We were within 12 words of a bill that everyone could agree to last session, and had agreement between the state, Louisville's mayor, and the environmental coalition - only the chamber and AIK opposed the provision reopening closed site decisions if a mistake occurred in approving them and someone was at risk because of the mistake.

PLEASE CALL AND FAX YOUR STATE SENATOR TO OPPOSE SENATE BILL 2. An Op-Ed piece I wrote in response to a February 4 Courier editorial is attached. It ran this morning - the vote is at 2:30 today in committee, and early next week on the Senate floor.

Tom FitzGerald
====================================

February 4, 2001 (OP ED)

As the environmental negotiator on the "brownfields" bill during the last legislative session, I take exception to the February 4 editorial
accusing "environmentalists" of being the obstacle to passage of a bill to assist in remedying contamination of brownfields properties.

The editorial unfairly characterizes environmentalists as "the obstacle" to redevelopment of contaminated properties for supposedly
demanding that land be restored to "pristine" pre-Colombus conditions rather than "healthful standards" based on the proposed land
use.

The editorial completely misses why the so-called "brownfields" bill stalled in the 2000 Session. At the end of the 2000 session, only
twelve words stood in the way of a consensus voluntary remediation bill. The Mayor of Louisville, the state Natural Resources and
Environmental Protection Cabinet, and myself, were in agreement on a bill, but the hazardous-waste generating industries and the
Senate sponsor did not agree to one clause in the bill, and so the bill was not passed.

That we got so close to a bill was remarkable, given the many flaws in the original senate bill drafted by the City of Louisville and the
hazardous waste industries, including a "right to know less" provision that made confidential information about contamination even if on
or under other people's property; a provision that weakened current clean up standards; a provision forcing the state to approve cleanup
plans despite unremedied contamination of innocent neighbors' properties; and an unconstitutional provision cutting off the right of
neighbors to sue for contamination of their lands from inadequate cleanups. While the editorial calls for "relief from liability" as the key to brownfields redevelopment, Kentucky law does not allow cutting off innocent neighbors' common law rights to sue for any damage for personal injury or property damage. The only real "liability relief" available in fact and at law is to clean up one's mess properly, and not passage of a law ordering the state to grant "liability relief" in the form of covenants not to sue even where cleanup plans are inadequate to protect the public.

The briefest glance at the 2000 Senate bill reflects that it was not a bill limited to abandoned former industrial and commercial
"brownfield" properties. It was much broader "voluntary remediation" bill that allowed industrial sites still owned and used by those who
contaminated them to use the law. This inclusion of these active, more heavily contaminated sites made more difficult the negotiation
process, since the cities are interested in restoring sites to productive use, while the primary concern of the industries who caused the contamination is to cut their financial liability by lowering cleanup standards and narrowing what must be remedied. For almost twenty years, hazardous-waste generating industries and their trade associations in this state have been engaged in an relentless legislative effort to lower clean up standards, relax cleanup obligations, and increase permissible residual contamination of properties that they and their predecessors contaminated; with a goal not of restoring blighted properties but of shifting the hidden costs of their pollution of their land and groundwater into the public domain.

After hundreds of hours of negotiations, the bill was improved to include notice to neighbors, to eliminate the secrecy provisions and to recognize third-party rights to sue if their lands were contaminated, and to allow for management of contamination in place provided that the contamination was removed from adjoining lands.

Contrary to the inaccurate characterization of my position regarding the level of remediation of hazardous releases, existing state law
has for years allowed the option of a remediation plan that leaves levels of contamination in place and manages the risk to prevent harm
instead of complete removal of contamination as one option. Kentucky law appropriately insists that the remedy be protective, and that
the choice of remedy and the standards not shift to innocent third-parties and to the next generation hidden costs of inadequate
remediation.

The only sticking point in 2000 was my refusal to agree to a provision forever barring the state from demanding further action be taken if the state mistakenly approved a cleanup plan, even if that mistake was causing harm to people or the environment. Louisville's Mayor, the State and the environmental community concurred that where the state mistakenly approved a site remediation plan as being
protective and it turned out to be a mistake resulting in active harm to persons or the environment, that the "covenant not to sue" should
be "reopened", regardless of who owned the property. Industry and the Senate sponsor insisted that even if the approval was mistaken
and someone was being harmed, the state could not reopen the site approval if the applicant wasn't the party that had contaminated the
property but was a subsequent purchaser.

While I believe that removal of contamination rather than fencing it or burying it under asphalt is a more responsible remedy and
preferred public policy, since removal addresses the contamination once and for all rather than passing along to our children a more
limited set of land-use options (and the costs of non-remediation), making the land "pristine" is not what this debate was and is about. It is about assuring that any legislation outlining the process for remedying contamination on these properties requires thorough
characterization of the extent of contamination, and proposes a plan that fully protects subsequent landowners and innocent neighbors,
whether the contamination is removed or managed in place.

Our position has remained consistent throughout this debate: we support and have worked diligently towards legislation that will provide reasonable timeframes and define with more clarity the process for remediating contamination of properties, provided that the remedy protects public health and the environment and does not shift the costs of contamination from those who caused it and those who want to purchase the contaminated lands to innocent third-parties, neighbors and our children. Regardless of how we are castigated by editorial writers who haven't heard both sides before taking up the pen, hiding pollution under a blanket of immunity, inadequate cleanup plans and weaker standards is a result we cannot in good faith abide.

The prospect for a bill this session depends on whether the City of Louisville, Industry and the Senate are willing to begin where we left
off in 2000 and to bring closure to the one disputed issue. The prospects are not great, given the City of Louisville and industry's most recent bill iteration, Senate Bill 2, which will be heard Thursday in committee. The bill takes a giant step back away from consensus into conflict.

Representative Paul Bather will introduce House Committee Substitute to House Bill 104, reflecting the consensus reached by the city,
state and citizen representatives at the end of last session. With Senate and industry agreement, it will become a responsible and
workable voluntary remediation law for addressing "brownfields."




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