KRC Comments On Proposed Brownfields Regulations

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KRC Comments On Proposed Brownfields Regulations  Posted: November 10, 2013

November 10, 2013

Tony Hatton, Director
Division of Waste Management
Frankfort, Kentucky 40601
By email

Ms. Louanna Aldridge
Division of Waste Management
Frankfort, Kentucky 40601
By email

Re: Regulations Implementing KRS 221.1-415

Dear Tony and Louanna:

Sorry for the delay in transmitting these observations and concerns. As I mentioned, since these comments are coming outside of the formal comment period, I do not expect to receive ?affirmative consideration” but would appreciate your taking these concerns into account in revising the proposed regulations. By regulation, here are the concerns:

401 KAR 102:005

The definition of “property” at Section 1(8)(b) is of concern because it expands the scope of the program beyond the statutory authority. The statute addresses real property on which there has been a release of petroleum or a hazardous substance, pollutant or contaminant. The regulatory definition of “property” includes a new category of property for which there is a “potential presence or perceived presence” of a hazardous substance, contaminant, or pollutant, or petroleum. To expand the program beyond those properties on which a release has occurred to a broader set of properties that may not in fact have had a release, is beyond the scope of the statute. I would recommend eliminating proposed Section 1(8)(b).

A secondary concern is that the definition limits properties eligible to those for which the “expansion, redevelopment, or reuse” is “complicated” due to the actual or possible release of petroleum or a hazardous substance, pollutant, or contaminant. To define property in that manner artificially limits the application of the statute, which does not require that a property be shown to be difficult to redevelop in order to be eligible, but instead applies to all properties on which there has been a release governed by KRS 224.1-405 or 224.1-400, and for which the person certifies and the cabinet finds that the (2) criteria are met.

Since the General Assembly has already defined which real property is eligible, I see no need to further define “property,” and would recommend simply restating that “property” means real property on which a release has occurred that is governed by KRS 224.1-400 or 405.

401 KAR 102:010

In Section 3(2), the phrase “from the date the all appropriate inquiry” is awkward. Was it intended to read “from the date that all appropriate inquiry” was conducted, or the date that documentation was submitted, or approved? Subsection (3) has the same awkward phrasing.

In Section 4(1) “The Notice of Concurrence” should read “A” Notice of Concurrence, since more than one will be issued under the program. What is “unacceptable harm” should be defined, and the threshold should be extremely low, since no appreciable or measurable harm to third-parties (i.e. the public) should be tolerated or be deemed acceptable.

Subsection 2(b) should read “the applicant is not liable” rather than “shall not be liable.”

Section 5(4) should be modified to provide that not only must the applicant “address” the release, but that the notice of concurrence shall not cover such releases. Specific reference to 224.1-400 and 224.1-405 should also be included, since by causing a release the applicant becomes subject to either (or both) of those laws.

401 KAR 102:020

As noted above, what constitutes exposure to the public or environment that is “unacceptable harm” should be defined. While I realize that the statute has created the problem by modifying harm, as if any unconsenting and unknowing exposure of the public could ever be deemed “acceptable,” but absent a definition, the meaning of the qualifying word “unacceptable” will likely be parsed after harmful exposure or environmental damage has occurred due to a lack of adequate guidance to the reviewer leading to inadequate consideration of the potential for harm during the review process.

Thanks for your consideration of these comments, and your continued efforts to further the remediation of our legacy of contaminated properties in the Commonwealth.


Tom FitzGerald
cc: Commissioner Bruce Scott
By Kentucky Resources Council on 11/10/2013 5:32 PM
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