Revitalizing Southeastern Communities , flftr -f Kentucky Technical aspects of Kentucky's brownfields program are housed in the Superfund Branch of the Division of Waste Management, while promotional and administrative elements reside in the Division of Compliance Assistance. Kentucky's Targeted Brownfield Assessment Program (TBA) provides free assessments to local governments and non-profits. These assessments may comprise one or more of the following: (a) a Phase I assessment, (b) a Phase II assessment, and (c) projected options and cost estimates. The Kentucky Brownfields Program is currently seeking participants. The Kentucky Voluntary Cleanup Program provides four tracks for program participants: 1. The "Self-Certified' cleanup track, which provides no liability protection, is available for minor releases or releases authorized by permit. 2. The "Notice of Completion" track is available to any party, and results in a Notice of Completion letter. 3. The "No Further Remediation Cleanup" track is available only to public entities, and results in a No Further Remediation Letter. 4. A Voluntary Environmental Remediation Program (VERP) cleanup is available to most parties, with some statutory restrictions. This track is the most complex and culminates in a Covenant Not to Sue. The Kentucky General Assembly recently approved tax incentives for qualified brownfield revitalization projects, amended the state Superfund law to clarify and expand liability protections, and enacted the Uniform Environmental Covenant Act (UECA). The tax incentives include an income tax credit for remediation expenses and a reduced ad valorem tax rate on brownfield remediation property for a three-year period. Website: www.waste.ky.gov/programs/sf/brownfields.htm Contact: Herb Petitjean KY DEP - Division of Compliance Assistance 14 Reilly Rd. Frankfort, KY4060I 502-564-0323 or 1-800-926-81 I I herb.petitjean@ky.gov ------- Kentucky Targeted Brownfield Assessment Program (TBA) The Commonwealth of Kentucky and the federal Environmental Protection Agency are working together to help return brownfield properties to productive use. The Targeted Brownfields Site Assessment (TBA) Program provides the initial step in characterizing the environmental contamination of a property by helping to determine how much and what type of contamination is present. A TBA may encompass one or more of the following activities: 1. A screening or "all appropriate inquiry" (Phase I) assessment, including a background and historical investigation and a preliminary site inspection; 2. A full (Phase II) environmental assessment, including sampling activities to identify the types and concentrations of contaminants and the areas of contamination to be cleaned; and 3. Establishment of cleanup options and cost estimates based on future uses and redevelopment plans. The Kentucky Brownfields Program is currently looking for projects for the program. There is no cost for the assessments. A candidate site should have redevelopment potential, be publicly owned or abandoned, and suffer from the stigma of potential environmental liability. The intended redevelopment can involve the creation of commercial, industrial, residential, recreational or conservation uses. Kentucky is limited in the number of TBAs it can take on each year, so sites are considered on a first come, first served basis. To receive an application form, or more information, please contact Herb Petetijean, the brownfields coordinator for Kentucky. Contact Information Herb Petitjean Brownfields Coordinator Kentucky Division of Waste Management 14 Reilly Rd. Frankfort, KY 40601 (502) 564-6716, ext268 herb.petitjean@ky.gov ------- The Kentucky Voluntary Cleanup Program Kentucky's cleanup regulations and statutes offer four tracks for volunteers. These vary in eligibility, complexity and liability protection provided. Cleanup track Relevant Statute Eligibility (Please refer to relevant statute for exact eligibility requirements.) Complexity Liability Protection Offered "Self-Certified" KRS 224.01-400 Minor Releases Or Releases Authorized By Permit Least No Liability Protection Provided Cleanup (19) Complexity "Notice of Completion" (or 01-400) Cleanup KRS 224.01 - 400 and KRS 224.01-405 Any Party Intermediate Complexity Notice of Completion Letter "No Further Remediation" Cleanup KRS 224.01-450 to 224.01-465 Public Entities Intermediate Complexity No Further Remediation Letter Voluntary Environmental Remediation Program (VERP) Cleanup KRS 224.01-510 to KRS 224.01- 532 Any Party, unless property is in one of these categories: * Licensed Radioactive Materials Facility * NPL Site * RCRA Site * Subject of Enforcement Action or * Environmental Emergency. Greatest Complexity Covenant Not To Sue Kentucky Division of Waste Management Superfund Branch at http://www.waste.kv.qov/proqrams/sf/default.htm Jan. 5, 2005 ------- Kentucky Contact: Herb Petitjean Address: Kentucky Division of Waste Management 14 Reilly Road Frankfort, KY 40601 Phone: 502 564 6716 Fax: 502 564 5096 Email: Herb.Petitjean@ky.gov Web site: http://www.waste.ky.gov Program Description (VCP, brown fields, or related) Brownfields definition: Kentucky does not have a definition provided by statute or regulations. Program titles: • Voluntary Environmental Remediation Act (VERA) • Voluntary Environmental Remediation Program (VERP) Liability relief provisions: Volunteers may apply to obtain a Covenant Not to Sue (CNTS) under VERA. Volunteers may also conduct cleanups under a less formal process and obtain a Notice of Completion or a No Further Remediation letter, the latter being limited to public entities. Financial incentives (grants, loans, tax provisions, etc.): The Kentucky Cabinet for Economic Development offers a variety of incentives for new or expanding businesses, but none is specifically directed to brownfields. The Kentucky Division of Waste Management uses a grant from EPA to conduct a limited number of Targeted Brownfields Assessments each year for local governments and eligible nonprofits. The division also helps eligible parties develop applications for federal grants. VERA established an Agricultural Warehousing Sites Cleanup Fund to address the growing number of closed tobacco warehouses, but no money has been allocated to the fund. Legislative or program site eligibility requirements: Any party is eligible to enter the VERP to receive a CNTS unless: • The property is a licensed radioactive materials facility. • The property is part of or contains a site that is on the National Priorities List (NPL). • The property is part of or contains a hazardous waste treatment, storage, or disposal facility for which a permit has been issued, or the site is otherwise the subject of hazardous waste closure or corrective action. • The property or site is the subject of state or federal environmental enforcement action related to a release for which the application is submitted. • The property or site presents an environmental emergency. Properties containing underground storage tanks (UST) are eligible for the program, but they must satisfy the cleanup requirements of the UST Program and any release from an UST is not covered by the CNTS. There are no restrictions on parties wishing to receive a Notice of Completion. A No Further Remediation letter is only available to public entities. Financial Elements Assessment and cleanup funding (source, amount, relationship toVCP/brownfields programs, application process, eligibility requirements, dedication to special types of sites such as petroleum, dry cleaners, abandoned drug labs, etc.): The Kentucky Cabinet for Economic Development offers a variety of incentives for new or expanding businesses, but none of these incentives is specifically directed to brownfields. The Kentucky Division of Waste Management uses a grant from EPA to conduct a limited number of Targeted Brownfields Assessments each year for local governments and eligible nonprofits. The division helps eligible parties develop applications for federal grants. VERA established an Agricultural Warehousing Sites Cleanup Fund to address the growing number of closed tobacco warehouses, but no money has been allocated to the fund. Tax incentives (abatements, credits, etc.): No information available Other forms of support (environmental insurance, brownfields redevelopment authorities, etc.): No information available Program Elements Technical Elements Methods/standards/controls: State Superfund statute provides four cleanup options: • Proving that no action is required • Proving that site/release can be managed with engineering/institutional controls • Removal • Any combination of the above EPA Region 9 Preliminary Remediation Goals (October 2002) are associated guidance used for screening. Target risk set at an excess cancer risk of 10 6 for carcinogenic endpoints and a Hazard Index of 1 for non-carcinogen endpoints. May use Generic Statewide Ambient Background Table or develop site-specific values. An Update from the States ------- Kentucky Future land use may be considered as part of proposal, but requires institutional controls to insure that use remains compatible with remedy. Contaminants covered/excluded: Petroleum and polychlorinated biphenyls (PCBs) are covered, but petroleum releases are not eligible for CNTS if they fall under the UST Program. Asbestos and lead paint are covered if released in environment and not part of a structure. Use of long-term stewardship and institutional controls (tracking, oversight, monitoring, reopeners): The CNTS does not apply to: • Releases not expressly identified in the corrective action plan. • Claims based on failure of the applicant or any successive landowner to comply with the approved corrective action plan, including any required land use restrictions and engineering or institutional controls. • Liability resulting from the applicant's exacerbation of releases identified in the corrective action plan. • Criminal liability. • Petroleum storage tanks. • Claims or liability based on or resulting from misrepresentations or intentional omissions by the applicant. • Liability for conditions at the site that were not known at the time that prevent the remediation of being protective of human health, safety, or the environment. • Claims based on changes in scientific knowledge. • Environmental emergencies. • Natural resource damages. • Any administrative or civil action not expressly excluded by the covenant. The party or applicant shall conduct annual (or other approved frequency) inspections of the engineering and institutional controls and shall make annual (or other approved frequency) certification to the cabinet that the controls remain protective of human health, safety, and the environment. Management & Implementation Elements Voluntary Cleanup Program MOA with EPA: No Costs to enter program or fees for service: VERP application fees—Area of 3 acres or more ($1,000); area greater than 3 acres and less than 10 acres ($2,500); and area of 10 acres or more ($3,500). Applicant reimburses cabinet for cost of review and oversight cost that exceed the application fee. The cabinet may waive in whole or in part its right to be reimbursed if the property is less than three acres and the cabinet determines the waiver is in the public interest. Any public entity entering property that is publicly owned is exempt from the application fees. Funding source for administrative costs and staff: Funding comes from application fees and reimbursement for oversight costs. Grants and state Hazardous Waste Management Funds used to cover oversight costs for properties that have exemptions or waivers. Cleanup Activities Sites currently in VCP: Only one property is in the new VERP. Program is expected to grow since regulations have been adopted. Workshops conducted in May and June 2004 are expected to increase interest in the program. Most volunteers continue to conduct cleanups under a less formal process to obtain a Notice of Completion. Over 100 sites per year are addressed through this process. Sites completed under VCP: No sites have been completed under the VERP. Kentucky's Superfund Program has addressed approximately 2,500 sites under a less formal process. Benefits (incentives to participate in the VCP, covenants not to sue, etc.): VERP establishes an efficient and predictable process for voluntary cleanups. It includes time limits for review of documents by the cabinet. On successful completion of a cleanup, the applicant receives a CNTS. Public Participation Public participation requirements (notice, comment periods, etc.): Kentucky's VERP has a public participation component. Requirements include: • The applicant shall notify the local government units at the time of application and at the time that the corrective action plan is proposed. • The applicant shall place notices in the newspaper of largest circulation in the county at the time of application and at the time that the corrective action plan is proposed. • The applicant shall post a sign on the property stating that the site is undergoing remediation and providing information on where and when the corrective action plan is available for public review and comment. • Copies of all relevant documents shall be placed in the local public library. Documents are also available from the Division of Waste Management file room as provided by Kentucky's Open Records Act, KRS 61.870-884. • A comment period of at least 30 days shall follow publication of the notice of the submittal of a corrective action plan. During the comment period, any person may submit written comments to the cabinet concerning the corrective action plan and may request a public hearing. The cabinet may hold a public hearing if request is made. • The cabinet shall consider all written comments and public testimony prior to taking any action. • The public may appeal approval of a corrective action plan or issuance of a CNTS. 60 State Brownfields and Voluntary Response Programs: ------- Voluntary cleanups outside the VERP also have a public participation component, but not to the extent of the VERR • All cleanups being conducted under the No Further Remediation Letter process (KRS 224.01-450 through 465) include a public notice and public comment period. • For any proposed remedy that does not achieve the target risk levels at the point of exposure, the volunteer shall provide a public notice. The cabinet shall receive public comments for 30 days following the publication of the notice. • Documents related to any cleanup are available for public review under the provisions of Kentucky's Open Records Act, KRS 61.870-884. Public participation activities (hearing, meetings, etc.): See comments under public participation requirements. Statutory Authorities • KRS 224.01-400 Reportable quantities and release notification requirements for hazardous substances, pollutants, or contaminants—Variation of requirements by administrative regulation—Emergency plan—Powers of the cabinet—Remedial action to restore environment—Lien of cabinets costs of cleanup— Liability of financial institution acquiring property or serving as fiduciary. • KRS 224.01-405 Corrective action for release of petroleum or petroleum product from a source other than a petroleum storage tank. • KRS 224.01-450 to 465 No Further Remediation Letter. • KRS 224.01-510 to 532 Voluntary Environmental Remediation Act. • 401 KAR 100:030 Remediation Requirements. An Update from the States 61 ------- |