March 9, 2001Senator Dan Kelly, Senate Majority Leader Kentucky State Senate, Frankfort, Kentucky 40601
Representative Greg Stumbo, House Majority Floor Leader Kentucky House of Representatives, Frankfort, Kentucky 40601
Re: Senate Committee Amendment 2 To House Bill 321
Dear Senator Kelly and Representative Stumbo:
I am writing to register my strenuous objection to the adoption of the vague and overbroad definition of "gasification" which was adopted by the Senate Agriculture and Natural Resources Committee last evening, and to request that if the amendment is incorporated into House Bill 321 to create a new definition in KRS Chapter 224 of the term "gasification," that a second amendment be incorporated into KRS 224 to assure that new facilities proposing to "gasify" solid waste do not end-run public and county approval under the solid waste planning process.
Adoption of the definition of "gasification" recommended by the Senate Committee will allow a proposed facility engaging in disposal of solid wastes through "gasification" to claim exemption from local solid waste plans and local consistency determinations, thus bypassing local planning and public scrutiny and comment through the solid waste plan process.
While the proponents claim no intent to avoid regulation, the direct consequence of defining this solid waste disposal activity as something other than a "waste disposal facility" will allow the facility proponents to claim that the requirement to demonstrate consistency with the local area solid waste plan is inapplicable.
At the heart of Senate Bill 2, enacted during the 1991 Extraordinary Session, was a promise made to counties that the local governing bodies, in return for properly planning for their own solid waste disposal needs, would gain the ability to control the import of solid waste into their communities by identifying what, if any, capacity for solid waste disposal would be available, and whether and how solid waste from other areas and their own area would be disposed in their communities.
This was accomplished in KRS 224.40-310 and KRS 224.40-315 by requiring that any new "waste disposal facility" seeking a state permit first demonstrate to the Cabinet that it has received a written determination from the local governing body (county or 109 Board) made after public hearing, that the capacity for disposal of solid waste sought by that facility is consistent with the local solid waste plan.
"Waste disposal facility" is defined in KRS 224.40-310 to include landfills and "solid waste incinerator; waste-to-energy facility; or a hazardous waste incinerator . . . ." The clear intent was that thermal treatment of solid wastes, with or without energy recovery, be included as a "waste disposal facility."
By creating a new category of "gasification" for any technology that processes solid wastes and creates gases, the door is opened to argue that solid waste gasification is not incineration or a waste-to-energy facility, ad that even though it is disposal of solid waste, local government and public input can be sidestepped.
Since the proponents claim that the intent is not to avoid regulation, they should have no objection, if the term "gasification" is to be adopted, to also amend KRS 224.40-310(1) to include the phrase "solid waste gasification" within the ambit of "waste disposal facilities" required to demonstrate consistency with local solid waste plans prior to state approval.
Without this change, the promise made to local communities will be breached, and unwilling communities could become hosts for regional solid waste "gasification" facilities importing unwanted wastes and centralizing the risks inherently associated with thermal treatment of heterogenous, highly variable waste streams.
This amendment would assure that the classification of a solid waste thermal treatment unit as "gasification" will not result in avoidance of local input and consistency with local solid waste planning, and that new solid waste units do not become importers of solid wastes in a manner inconsistent with SB2 and its commitment to local communities to match local responsibility with local control over solid wastes.
There is a second reason that this clarifying amendment should be included if the term "gasification" is to be adopted. The surest path to engendering opposition to a relatively untried technology is to be perceived as having gamed the rules at the eleventh hour to avoid local government and community scrutiny. Any technology promising to be cleaner, better and safer should welcome local review and the opportunity to defend the technology to a proposed host community.
There is a final concern with the proposed definition of "gasification." It is an overbroad, imprecise definition that is far too broad enough in its sweep. The classification of a "technology" as gasification merely because the process emits synthetic gases, is so broad as to encompass direct flame or indirect heat incineration of wastes, uncontrolled tire pile fires and open dump fires, and any other process by which solid wastes are transformed by thermal treatment into a gaseous state.
If there is an actual and valid distinction to be made in the chemical, biological, or other reactions of solid waste exposed to low-temperature thermal treatment that would justify a separate regulatory classification of the technology, it should be defined with some precision, and some demonstration made to justify why existing regulations do not adequate address this technology and provide appropriate controls on pollutants. Vague, open-ended definitions have no place in a regulatory statute that forms the basis for protection of human health and the environment for the Commonwealth.
In closing, as I testified before the Senate Committee, this eleventh-hour adoption of the statutory definition of "gasification" is ill-advised. The most immediate effect will be to allow local solid waste plan and approval processes to be side-stepped which both breaks a decade-long commitment to local governments and creates a poor precedent certain to engender ill-will towards the new and relatively untried technology and the legislature. There may be other intended or unintended effects on the ability to regulate air and waste emissions from these units which I am still analyzing.
Please reconsider and withdraw the proposed amendment defining "gasification," or alternatively, amend KRS 224.40-310(1) to clarify that solid waste "gasification" is subject to local solid waste plans and local consistency determination approvals.