The 3rd meeting of the Subcommittee on Natural Resources of the Interim Joint Committee on Agriculture and Natural Resources was held on Wednesday, September 10, 2003, at 10:00 AM, in Room 149 of the Capitol Annex. Representative James Gooch, Chair, called the meeting to order, and the secretary called the roll.
Present were:
Members: Senator Ernie Harris, Co-Chair; Representative James Gooch, Co-Chair; Senators David Boswell, Paul Herron Jr, and Elizabeth Tori; Representatives Hubert Collins, Brandon Smith, Robin L. Webb, and Brent Yonts.
Guests: Kori Jones, Kentucky Farm Bureau; Tom Fitzgerald, Kentucky Resources Council; Joe Ewalt, Brownfields Task Force; Chris Nolan, McBrayer, McGinnis, Leslie, and Kirkland; David Sparrow, University of Kentucky College of Agriculture; Libby Marshall, Municipal Electric Power Association of Kentucky; Gay Dwyer, Kentucky Retail Federation; and Eric Gregory, East Kentucky Power.
LRC Staff: Tanya Monsanto, Hank Marks, Rebecca Mullins, and Kelly Blevins.
First order of business was approval of the minutes from the June and July subcommittee meetings. The minutes were approved by voice vote. Rep. Gooch then gave an overview of Senate Bill 2 relating to brownfields. Rep. Gooch described brownfields generally and some of the history behind implementing a brownfields program. Chairman Gooch invited representatives from the Natural Resources and Environmental Protection Cabinet and the chairman of the Brownfield’s Task Force to the table.
Mark York and Commissioner Robert Logan with the Natural Resources and Environmental Cabinet and Joe Ewalt, chairman of the Brownfields Task Force provided testimony on the development of administrative regulations to implement a brownfields program. Mark York indicated that regulations had once been promulgated and then withdrawn. He stated that there is a draft regulation under consideration and that the cabinet hopes to have a regulation to file on October 15, 2003.
Senator Tori asked for a copy of the draft regulation for review. Mr. York replied that the cabinet was trying to get copies to staff for distribution to the members of the subcommittee.
Rep. Gooch asked Joe Ewalt to provide a Brownfields Task Force update. Mr. Ewalt discussed the number of meetings, who comprised the task force and the concerns of task force members about the proposed regulations. Two important issues are the need for alternative approaches and the need to revise the standards for remediation. He indicated that the League of Cities wants further change in the draft regulation. Mr. Ewalt stated that a new regulation would not be in place before the incoming administration.
Rep. Gooch stated that any new regulation should prevent re-openings in the Brownfields remediation program. Reopenings must be reasonable. Rep. Gooch then asked about the success of the Pennsylvania program. Commissioner Logan stated that re-openings are an important issue. He described the cabinet’s analysis of the Pennsylvania brownfields program. Commissioner Logan stated that the key difference between Kentucky and Pennsylvania’s programs is how a site is defined. Kentucky appears to have fewer sites because Pennsylvania includes many other areas as sites.
Sen. Leeper thanked the cabinet for the clarification on the key differences between the Kentucky and Pennsylvania programs. He then asked if Kentucky used Pennsylvania’s standards, what would be the cost of the program to Kentucky. Commissioner Logan replied that Kentucky sites are cleaned to levels similar to Pennsylvania. Commissioner Logan then described the process for applying for the Brownfields program in Kentucky. Commissioner Logan stated that the cabinet wants a 1 in 1 million risk level and that should be Kentucky’s clean up standard. The standard is even more restrictive for PCBs and lead.
Sen. Leeper again asked if the cost would be the same in Kentucky and in Pennsylvania. Commissioner Logan stated that the cost is approximately $150,000 to 1 million more in Kentucky than in Pennsylvania. The commissioner said that he is unsure about site specific costs.
Sen. Harris expressed agreement that the clean-up standard should be different depending on the type of use for the site. He also inquired about the membership of the Brownfields Task Force. Joe Ewalt described the membership in general.
Sen. Harris then inquired about a presentation provided by Dr. Waddell, a toxicologist. Mr. Ewalt stated that the presentation discussed flaws in the cabinet’s methodology for determining risk levels. Dr. Mark Clem introduced himself and stated that he worked with Dr. Waddell. Dr. Clem stated that there are higher risk levels that are still protective of human life.
Sen. Harris expressed his opinion that the executive branch carries out the will of the legislative branch. The risk levels proposed by the cabinet are too restrictive and the legislature may need to address the issue of standards for clean-up. Sen. Harris then asked if there was anyone from industry that wished to address the subcommittee.
Commissioner Logan expressed concerns about setting a higher risk level. He stated that risk levels are established also to protect the ecology and the environment. There are other media and ecosystems that impact human health. If these are damaged by pollution then humans suffer the consequences.
Rep. Gooch expressed his confusion over the issue of clean ups and risk levels because the sites are already polluted and the discussion today appears to be forward looking. He stated that human health is currently at risk and by not cleaning up these sites human health will continue to be at risk. Commissioner Logan stated that the standards take into consideration how long the pollution will remain present in the air, water and waste into the future. It compels clean up and improves the overall environment.
Sen. Harris stated that the argument breaks down because these are very old sites and nothing will happen to clean them up unless the process is made more accessible. Commissioner Logan replied that it is difficult to set criteria for air and waste. They want to use a risk level that is most protective of human life and the ecology and the environment.
Sen. Harris asked if there was a base risk level for all compounds and he articulated his sentiment that the subcommittee promotes discourse and seeks input when setting policy. Mark York replied that the task force members have assignments and they are working through the draft regulation. They are also seeking input from all parties.
Rep. Collins expressed confusion about this issue of standards too. He asked how the cabinet knew that the risk level actually reduced diseases like cancer. So many other factors are important too. Commissioner Logan stated that the cabinet tries to protect human health as best as possible.
Rep. Yonts disagreed. He stated that the cabinet should set standards at the most protective level. He then described an article in the Courier Journal which reported a higher than normal incidence of cancer in Jeffersontown, near Louisville. Sen. Leeper asked why we did not use Region 9 screening standards as SB 2 prescribed. Commissioner Logan replied that Region 9 standards are not meant to be used as remediation standards because (1) there are other organisms and ecosystems that will not be protected, (2) groundwater will not be protected and (3) geological features of our soil will facilitate transport of pollution. Brownfields aren’t just about urban redevelopment; its about protecting human health and the environment too.
Sen. Leeper stated there were 220 cleanups since 2000. Have these cleanups proceeded with a “covenant not to sue”? Commissioner Logan replied there are only 3 projects with a “covenant not to sue”. The other sites are cleaned up in conformance with the old statutes.
Sen. Tori asked if the cabinet promotes cleanup of traditional brownfields as well as non traditional brownfields sites. She stated that the message behind brownfields is urban cleanup. Joe Ewalt stated that the task force is considering expansion of the program to nontraditional brownfields sites. Sen. Tori then stated that cleanup of the earth’s sites is important for health and ecosystem survival. What needs to be done to further brownfields clean up? Commissioner Logan replied economic incentives are essential for encouraging clean ups. After providing incentives then the standards are important. Incentives appear to be more important than standards because prospective developers want to know if they can offset their investment costs.
Rep. Gooch remarked that a city with a site will likely provide some incentives for cleanup. He stated his support for state incentives but said that locals will help. Sen. Leeper commented that in tight budget years it is important to fund a program as important as Brownfields; however, members cannot justify budget outlays for a program that isn’t already in place. The challenge is to the cabinet to implement a reasonable, workable program so members can support funding options in the upcoming session.
Rep. Smith argued that the cabinet’s program is supposed to cut through red tape and make it easier for developers to clean up these sites. These sites are a burden to locals now and the program should create opportunities now. Commissioner Logan replied that the cabinet tries to cut through red tape and promote redevelopment. The regulations have been simplified. Joe Ewalt commented that developers need certainty on cleanup requirements. Cities want assurances on the front-end.
Sen. Harris asked Mr. Ewalt if the task force would be making recommendations for incentives to encourage brownfields redevelopment. Mr. Ewalt said he thinks the task force will. Money is an important feature of other states with successful brownfields programs. SB 2 permits funding for small communities but there is no money appropriated. There is also federal money and we need to get a program into place to be able to access those funds.
Rep. Webb stated that the funding portion of SB 2 was brought under her sponsorship. That portion of the bill was meant to redevelop old tobacco warehouses. Rep. Web discussed abandoned tobacco warehouses in her area and recommended using tobacco settlement funds as seed money for the redevelopment of those properties.
Rusty Cress with Associated Industries of Kentucky (AIK) introduced himself and commented that while AIK is not represented on the task force, AIK is interested in the program. AIK hasn’t examined the regulations carefully but we still have problems with the cabinet’s position particularly as regards standards and risk assessment.
Rep. Webb responded that exposure is a problem regardless of the intended use of the site. There will be men and women working at those sites and cleanup standards should protect human health.
Sen. Harris asked Mr. Ewalt that the task force report to the committee when the task force concludes its work. Mr. Ewalt replied that the task force cannot settle all issues, particularly the issue of clean up standards. When the task force concludes its work, they will report to the cabinet. However, there will remain unresolved issues and the cabinet has discretion to implement regulations even if there is disagreement among the affected parties.
Sen. Harris commented that there is interdependence between ecosystems, environment and human health, but human health is the most important. Commissioner Logan argued that the regulations cover both human health and ecosystems because in the pyramid of human life, smaller ecosystems and lower life forms are the building blocks at the base. Without these human life cannot survive.
Sen. Harris asked if there are different guidelines for cleanup depending on the intended use of the site. Commissioner Logan stated yes there are different standards and guidelines.
Rep. Gooch asked Tom Fitzgerald to respond to the testimony. Mr. Fitzgerald stated that the work of the task force has been productive. He discussed Pennsylvania’s program and the need for incentives. He expressed support for the current standards and expansion of the program for voluntary remediation. Mr. Fitzgerald then discussed the growth of new chemicals and the lack of information about them. He reiterated the need for standards that are most protective of human health, environment and the ecology.
Rep. Gooch thanked the members for their attendance and the presenters for their testimony. There was a motion to adjourn, which was seconded. The subcommittee adjourned by voice vote.