I wanted also to express a concern regarding the current fund levels. As you know, KRC has opposed past legislative efforts to divert funds from the program in order to help balance the state budget, and has expressed concern that the level of funding provided during the current budget cycle would not be adequate to pay existing claims and to allow the timely issuance of new regulatory directive letters. Apparently, according to the September 1, 2005 Status Report, those concerns have been realized. KRC urges the agency to develop a statement of need that realistically projects demand and provides sufficient funds to allow for an end to the suspension of regulatory directive letters and to timely accept new claims and to pay those claims. KRC will make a priority the retention of sufficient funds in the account during the next budget cycle to provide for prompt processing of new claims.
Specific comments follow, referenced by regulation and section.
401 KAR 42:005
It is unclear why the definition of remedial action has been added since the definition appears to be identical in substance to corrective action, which under KRS 224.60-115(4) means those actions necessary to protect human health and the environment in the event of a release from a petroleum storage tank. The statute provides for reimbursement of release as necessitating corrective action, and it is perhaps better to utilize the terminology of the statute rather than to create a new class of response actions to releases that appears to duplicate that in the statute.
Similarly, the use of UST system should be reevaluated, since it is a release from a petroleum storage tank requiring corrective action that the statute allows to be reimbursed; not a release from an UST system requiring remedial action.
Finally, the definition of UST facility as the property on which the UST system is located, blurs the existing distinction between the UST facility, which is the tanks and associated piping, and the property on which it is located. The distinction established in statute should be maintained the UST facility is located on the property; but it is not the property itself.
401 KAR 42:011
Again, the replacement of corrective action with remedial actions is questioned, since 224.60-105 provides for corrective actions, not remedial actions.
This same comment applies to the necessity and function paragraphs of the remainder of the regulatory package, wherever corrective action has been replaced by remedial action.
401 KAR 42:050
Suggest removing UST system, since release is defined by statute as a release from a petroleum storage tank and no further modifier is appropriate or necessary. The difference between petroleum storage tank and UST system appears to be that the latter definition includes as a release, a release into the interstitial space between the tank and secondary containment.
KRC appreciates the concern for requiring reporting breaches of primary containment, but suggests that 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 system failures. (It is highly unlikely that pre-RCRA system have secondary containment).
401 KAR 42:060 & 070
Same comments concerning the use of the terms UST facility, remedial action and UST system.
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 land owner does not protect the potential future uses of that land nor the environment. 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.
The provision should be removed.
In addition to the comments concerning Section 2, 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 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.
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 42:250
The terms remedial and corrective action are used variously. The statute permits reimbursement for corrective actions and the term should be used consistently throughout.
401 KAR 42:290
The citation to 224.60-130(2) in the necessity & function paragraph probably should be 224.60-130(1)(e), which is the subparagraph that calls for the establishment of ranking criteria for corrective action.
Concerning Ranks 2 and 3, the language should be modified slightly, since as the subparagraphs read now, they imply that Ranks 2 and 3 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 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.
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.
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.
Thanks again for the opportunity to review the draft regulations. I apologize for the delay in getting these comments to you and hope that they are still useful to the agency.