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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

"Voluntary Remediation" Bill Agreement  Posted: March 8, 2001
March 8, 2001

Yesterday afternoon, (March 7), agreement was reached among various groups on the text of a "voluntary remediation" bill. The compromise language was filed as House Floor Amendment #1 to Senate Bill 2, and will be voted on by the House and perhaps the Senate today.

The text of Senate Bill 2, the version favored by industry, was replaced by the language of Committee Substitute for House Bill 104 on Wednesday, and negotiations began on that preferred text. Briefly, HFA1 to Senate Bill 2 adds two changes to existing Kentucky law - first, creating a timeframe for processing and decision on plans to remediate spills and releases of hazardous substances, and second, providing a "covenant not to sue" the party once they remediate the contamination by removing or managing it.

Several key issues had to be resolved in order to reach agreement. In the final agreed-upon bill:

- a "science advisory board" with industry members who would dictate cleanup standards for the state, is gone. Instead, the state will within 1 year publish standards for hazardous substances at levels protective of human health, safety and the environment. The Cabinet will also publish a
regulation defining various risk management options.

- the reopener for "mistakes" was replaced by a broader provision allowing the state to avoid the covenant not to sue and to demand further remediation from the applicant or any other landowner if the site is causing an environmental emergency. Obviously, it is in appropriate to expect that the state will ever bargain away its power and duty to prevent harm, and this clause reserves that power to the state regardless of whether the harm was caused by a mistake or other cause.

- Public notice and access to information is improved, with a new public notice published when the application is made and establishment of a public reading file at the local library containing all significant documents relating to the site characterization and remediation. Gone are the secrecy provisions from the Senate Bill.

- The final bill makes clear that whatever clean-up option is chosen must be fully protective of public health and the environment. The original SB 2 did not.

- Sites with releases in the past and the future will be eligible for the program, but it is made clear that no civil penalties, injunctive power or other authority to punish violations of air, water and waste laws, are not waived.

- The final bill gives the Natural Resources & Environmental
Protection Cabinet clear authority to require more thorough characterization of releases, including additional data collection and analysis by the applicant. The original SB 2 did not.

- The final bill creates a fund to assist in reclamation of abandoned tobacco warehouses, to prevent them from becoming new "brownfields" Grants and low-interest loans awarded by the fund would pay up to 75 percent of clean-upcosts. SB 2 does not provide specifically for warehouse cleanup.

The final bill provides reasonable timeframes and defines with more clarity the process for remediating contamination of properties, provided that the remedy protects public health and the environment. It does so without shifting the costs of contamination from those who caused it and those who want to purchase the lands, to innocent third-parties, neighbors or to our children. HFA 1 to SB 2 is a responsible and workable voluntary remediation law for addressing "brownfields."

The agreement on the bill was the product of positive efforts by the Kentucky League of Cities, Bob Benson representing Mayor Dave Armstrong, Representative Greg Stumbo and House Leadership, and the Cabinet. Senator Bob Leeper showed considerable flexibility in agreeing to replace SB 2 with HB 104 as the basis for negotiations, and Rep. Paul Bather showed real leadership in allowing SB 2, with the text of Rep. Bather's bill, become the vehicle for the final bill rather than insisting that HB 104 be the vehicle.
Despite efforts from some quarters to undercut the development of a responsible bill, we were able to achieve resolution of this issue using the agreed-upon provisions of the last legislative session as the basis for some revisions and agreement on a bill.

The final bill deserves support. Please contact your Senator and Representative today at 1-800-372-7181 or 502-564-8100 and ask them to support HFA1 to SB 2.
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