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Kentucky Resources Council, PO Box 1070, Frankfort, KY 40602 Phone [502] 875-2428

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

Agreement Reached On "Brownfields" Proposal  Posted: February 17, 2001

Re: Agreement Reached On "Brownfields" Proposal

A tentative agreement was reached earlier this past week among Rep. Paul Bather, Bob Benson, representing the City of Louisville, the Kentucky League of Cities, and the Council regarding the text of a voluntary remediation (brownfields) bill. The text of the agreed-upon proposal will be introduced next week as a House Committee Substitute to Rep. Bathers' House Bill 104.

A description of the compromise follows.

The compromise proposal begins with SB 290 as negotiated at the conclusion of the last session, and retains the "mistake" reopener that will allow sites which the state has approved by mistake and which are causing harm, to be reopened. It distinguishes who will pay for any further remediation that may be necessary because of the mistake; providing for state superfund funding where the site is not owned by the party that contaminated it or its successors in interest.

If the site application is from the person who caused or contributed to the hazardous release, or his successor or assign, then that party remains liable for any further cleanup costs. The insertion of the "successor or assign" language is new language proposed by the Council to protect the public from companies transferring their contaminated sites to strawmen companies who would have then been protected from further liability for mistakes.

Where the site applicant is someone other than the party who caused the contamination, and the state mistakenly closes the site with the result that harm is occurring, the site would also be reopened but any further remediation costs would come from the state superfund rather than the applicant. This provides cities and other "innocent" parties with protection against future remediation liability in the case of state mistakes while providing resources to assure that the harm will be abated and the public won't suffer because of the mistake.

The state superfund is due for reauthorization in 2002, and will need to be increased to cover this contingent liability. That discussion will begin once this session ends.

Sen. Leeper's leadership in the Senate and Rep. Bather's leadership on this issue in the House, are to be commended. I will update you as the bill is introduced and progresses through the process.
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