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PO Box 1070, Frankfort, KY 40602  Phone 502.875.2428, Fax 502.875.2845

2003 Legislative Alert #1  Posted: January 23, 2003

Kentucky Resources Council, Inc.

Post Office Box 1070

Frankfort, Kentucky 40602

(502) 875-2428 phone (502) 875-2845 fax

e-mail FitzKRC@aol.com

January 23, 2003

2003 REGULAR SESSION: Bills We're Watching

This list profiles the significant environmental, conservation, consumer and general government bills that are being tracked by the Council during the 2003 session. This is the first of many updates. It will be updated at least weekly, and will be supplemented with more detailed analysis on key bills.

DO YOU WANT OFF THE LIST? HERE’S HOW

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WANT TO READ THE BILLS OR CONTACT LEGISLATORS?

For a copy of any bill, or to check the status of the bill, to track which committee it has been assigned to for hearing, and other legislative information, visit the Legislature's Homepage at http://www.lrc.state.ky.us

The toll phone number to reach a legislator in person is 502-564-8100. The toll-free bill status line is 1-877-215-0023. The toll-free meeting information line is 1-800-633-9650. The toll-free message line is 1-800-372-7181, to leave a message for a legislator or a committee. The TTY message line is 1-800-896-0305.

THE BEST WAY TO REACH LEGISLATORS

Did you know that for a single fax to 502-564-6543, you can reach any legislators that you want to contact? You can send a letter, for example, to all Senators and Representatives by listing their individual names on a cover sheet and asking that each get a copy of your letter. The good folks at the LRC fax room will copy your fax and distribute it to all that you list (the recipients must be listed by name.) The LRC webpage has a list of all legislators and all committee members.

WEEK ONE: LEADERSHIP AND COMMITTEE ASSIGNMENTS MADE, 310 BILLS AND 84 RESOLUTIONS ALREADY FILED

On January 7, 2003, the General Assembly convened in the second regular "short" legislative session. During week 1 of the session, a number of bills relating to the environment have been filed. The General Assembly has recessed until February 4, 2003 when it will reconvene in session until adjournment on March 25.

Please note that the Council does not have a position on each bill. Some bills are tracked for general interest; others simply to assure that they do not become vehicles for industry-sponsored amendments. KRC's position concerning bills is indicated with a plus (+) or minus (-). The sponsor and current status of the bill are also noted by Committee or chamber.

SB 1 (Williams)(S. State & Local Govt) (-)

SB1 would amend the Kentucky Constitution to allow the General Assembly to impose limits on the amount of punitive and noneconomic damages that a jury could award a person injured through medical malpractice, and would empower the General Assembly to mandate alternative dispute resolution for claims of medical malpractice.

Kentucky's Constitution protects against legislative limitation those rights of action available to persons injured through the tortuous conduct of another. Section 14 of the Kentucky Constitution guarantees that "All courts shall be open, and every person for an injury done him in his lands, goods, person or reputation, shall have remedy by due course of law, and rights and justice administered without sale, denial or delay."

KRC opposes any amendment that would limit or eliminate, for any class of injuries and for the benefit of one class of persons, the right of any person to bring a civil action and to seek a jury trial for compensatory or punitive damages for injuries sustained. Today, the proposed beneficiary might be health care providers.

SB 2 (Williams) (S. A&R)

Amends processes for submittal to and review by legislative of expenditure reduction plans where revenue estimates are reduced, and imposes conditions on use of budget reserve fund.

SB 6 (Roeding) (S. Ag. N.R.)

Conforms frequency of vehicle emissions testing for state or official registration vehicles from yearly to the same frequency as privately-owned vehicles (on a 2-year cycle currently in northern Kentucky).

SB 11 (Seum) (S. Ag. NR) (-)

Mandates that Jefferson County Air Pollution Control District Board terminate all proceedings commenced, and not commence new proceedings to enforce the provisions of the VET program or to seek sanctions, and that it dismiss with prejudice all unresolved court cases.

KRC has previously opposed the elimination of the Jefferson County vehicle emissions testing program by the General Assembly, and instead supported proposed modifications to reduce the frequency of testing developed by the District.

The prevention of enforcement of any law while that law remains in force is inappropriate as a matter of public policy, and invites violation of the law. If the prohibition against seeking sanctions includes a bar against referring those who fail to have their vehicles emissions-tested to the state for revocation of registration on their motor vehicles, the increase in noncompliance due to elimination of enforcement will likely cause additional pollutant emissions and complicate maintenance of attainment of health-based ozone pollution standards.

SB 13 (Roeding) (S. A&R)

Creates a new category of "theme restaurant destination attraction" as a type of facility potentially eligible for tourism attraction project credits against state sales tax.

SB 14 (Jackson) (S. A&R)

Would direct appropriation of $10 million dollars during FY 03-04 off the top of the tobacco settlement agreement monies to the Purchase Area Regional Park Authority.

SB 40 (Williams, Worley, Kelly) (S. State & Local Govt)

Modifies legislative procedures to eliminate the requirement that an actuarial analysis accompany any bill changing the liability of any public retirement system or containing a mandated health benefit. This requirement is included instead in the Senate Rule 52. Also eliminates mandatory requirement for preparation of a fiscal note for all bills or resolutions relating to local government or local services, and for executive branch regulations and instead gives the LRC Director discretion to determine whether a bill or Executive Order is a state mandate to local government needing a fiscal note (New Senate Rule 52 requires one if the fiscal effect on local government is "significant[.]"

SB 44 (Seum / Tapp) (S. Transportation)

Creates new Motorcycle Advisory Commission for Highway Safety to advise state Transportation Cabinet regarding "the specific needs of motorcyclists."

SB 47 (Tori) (S. Veterans, Military Affairs & Public Protection) ((S. Veterans, Military Affairs and Public Protection) (-)

Requires communities with zoning and planning to include within their comprehensive plan provisions to "accommodate" military installations of over 300 acres that are within, abut or are within 50 miles of that installation.

The bill does not define what constitutes a "provision for the accommodation" of those installations, but indicates that the goal is to "minimize conflicts between the installations and the planning unit's residential population" by engaging in consultation with the installation concerning expansion, air space usage, and environmental impact.

Federal military installations such as Fort Knox are on lands ceded by Kentucky to the United States and are not subject to local zoning and planning constraints. While consultation with military facilities in the revision of comprehensive land use plans is always appropriate, as it is for all governmental agencies and infrastructure providers, a bill requiring that the comprehensive plan be written to include a plan element to "accommodate" private land development based on installation potential expansion plans, or environmental impacts, appears to impose development constraints on private lands outside of the facility, rather than requiring that the military installation plan its development to protect the rights of those surrounding landowners. The bill is directed at the Fort Knox installation, which has planned the development of a tank training facility that has caused concern among nearby residential property owners.

SB 53 (Buford) (S. Transportation)

Provides for two specialized 5-year license plates – one for "Ducks Unlimited," and another for spay-neuter advocates. The bill repeals the existing law providing for a special Ducks Unlimited license plate, and outlines the process by which the Transportation Cabinet will issue the specialized plates. Additional contributions to Kentucky Department of Fish and Wildlife or to support spay and neuter education programs may be made when the specialized plates are purchased.

SR 1 (Kelly)

2003 Senate Rules of Procedure. Modifies when fiscal statements must be prepared by LRC staff.

HB 7 (Stumbo)

Proposes a constitutional amendment to require the General Assembly to stay in session in even-numbered years until it passes a budget. Would extend the length of sessions beyond the allotted 60 days with no limit on legislative days until a budget is enacted.

HB 8 (Nunn) (H. Banking & Insurance)

Authorizes state to act as insurer of last resort for medical malpractice insurance as it does not for workers compensation insurance; creates "medical review panel" that may be invoked by either party up to 20 days after the filing of a complaint, for rendering an "expert opinion" on the merits of malpractice civil complaints filed against physicians.

Statute doesn't clarify the relationship of this process to the court case, nor the effect if any given the expert opinion. The statutes does not indicate whether participation is mandatory but it appears to be since the court appears authorized to sanction or mandate non-participation. Statute doesn't indicate whether invocation of the medical review panel stays the court proceedings, not whether the decision of the review panel is independently subject to judicial review.

HB 14 (Stein/Marzian) (H. Judiciary) (+)

Amends state civil rights laws to prohibiting discrimination based on sexual orientation and gender identity in housing and employment.

HB 18 (Marcotte) (H. Transportation)

House counterpart of SB 6, conforms frequency of vehicle emissions testing for state or official registration vehicles from yearly to the same frequency as privately-owned vehicles (on a 2-year cycle currently in northern Kentucky).

HB 27 (Stacy) (H. Elections & Const. Amend)

Another proposed constitutional amendment on the budget; this approach would prevent adjournment of even-year sessions absent appropriations bills, allow legislators to remain in session indefinitely until appropriations bill(s) are passed, but removes any incentive for delay by preventing consideration of any other bill or resolution having the force of law after the 60th legislative day.

HB 28 (Callahan) (H. Tourism, Dev. & Energy)

Limits inducements available from the state for tourism development to those projects where independent consultant finds that a net positive economic impact for the Commonwealth will result.

HB 35 (Baugh) (H. NR Env.)

Bill requires that a solid waste transfer station file with the Natural Resources Cabinet a registered-permit-by-rule, which becomes effective unless denied by Cabinet within 30 days. Requires a copy of the registration be given to local solid waste management governing body and a certification by applicant that he complies with all local ordinances. If during the 30-day period new ordinances are enacted or amended, the owner must notify the Cabinet and registration is suspended until the owner certifies compliance with the new or amended ordinances.

It is unclear how the Cabinet would "suspend" the registration where new or amended ordinances are adopted since the registration is not effective until after that 30-day review period. Presumably it is intended that the registration be stayed pending a demonstration of compliance.

The categories of "permit by rule" and "registered permit by rule" have been criticized as "drive-by permitting" since the level of advance scrutiny of environmental impacts is minimal. The categories were created in order to facilitate the transition of solid waste facilities to better management standards in the early 1990's, and should be revisited in order to require full permitting for activities that can appreciable impact public health or the environment, and to better control "beneficial reuse" of wastes.

HB 59 (Belcher)(H. Ag. & Sm. Business)

Creates a Pest Control Board within the Natural Resources Cabinet to develop a list of noxious weeds, and to raise awareness of the threat posed by noxious (non-native, invasive) weeds.

HB 81 (Meeks) (H. State Govt, posted in committee) (+)

Modifies state laws on cemeteries in order to require better recordkeeping, to require notation of the burial location within a cemetery on the death certificate, to inventory native American remains currently held by state-funded agencies and to identify state-owned property suitable for reinterment of those remains, to recognize a right of access by descendants and family members of deceased persons to graves located on private property; and to create a voluntary state income tax checkoff to fund the state's county cemetery fund.

HB 82 (Meeks) (H. Judiciary)

Requires issuance of a permit by the Kentucky Heritage Council for any excavation of an archaeological site on private property; provides penalties and forfeiture of objects excavated in violation of law. Also clarifies rights of access to burial sites on private lands, and requires an Office of Vital Statistics permit for possession of human remains (other than cremated remains) and for any exhumation.

Exempts archaeological investigations conducted under the Historic Preservation Act and the "treatment" of cemeteries and archaeological sites under state federal mining laws.

HB 84 (Meeks) (H. State Govt)

Creates a Kentucky Native American Heritage Commission to advise state agencies concerning matters relating to Native American heritage.

HB 90 (Siler) (H. Tourism Dev. & Energy)

Requires establishment of standards for evaluating master agreements with and performance of concessionaires providing commercial activities and services at Kentucky state parks.

HB 98 (Wayne) (H. Judiciary)

Provides for mandatory referral to mediation or arbitration for any cause of action for damages against a nonprofit corporation based on a right "granted under the Kentucky Revised Statutes" and encourages other civil actions against such corporations to be considered for alternative dispute resolution.

KRC is concerned with any measure that would eliminate or restrict a right of action for damages against a corporation (profit or non-profit) or individual by mandating arbitration or alternative dispute resolution.

HB 101 (Nelson)(H. State Govt)

Bill would expand hazardous duty retirement category to include environmentalist positions in local health departments.

HB 106 (Meeks) (H. Local Govt)

Bill encourages and provides incentives for development of interlocal agreements among local governments for provision across county boundaries of police, fire, emergency and other essential community services, including raising reimbursement from Kentucky Pride Fund from 75% to 100% for illegal dumps clean by communities who are involved in interlocal agreements regarding solid waste management.

HB 108 (Palumbo) (H. Eco.Dev.)(-)

Bill requires each agency to develop a policy to allow reductions or waivers of civil penalties for businesses with up to 100 employees.

KRC believes that imposition of civil penalties should be based on factors related to the severity of the violation, harm or potential harm to the public or environment, violation history, and other case-specific factors. Waiving or reducing penalties for businesses merely because of the number of employees is rationally unrelated to the goals of the statutes whose violation gives rise to the penalties or to a determination of whether the individual corporate or business behavior warrants lesser penalties.

HB 120 (Bather) (H. Local Govt)

Allows local governments to create by ordinance special districts called "river corridor improvement districts" for areas within a 2-mile proximity to a river. "River corridor advisory boards" are to be created for such districts, to advise local government on environmental issues, development and preservation of the area, housing, economic development and infrastructure within and adjacent to the corridor area. Within that corridor area, an ad valorem tax of 10 cents per $100 of real and personal property within the boundaries may be imposed, and spent on projects and improvements within the corridor as determined by local government.

HB 154 (Ballard) (H. Local Govt)

Prohibits cities or counties from imposing restrictions on mobile phone use in motor vehicles.

HB 159 (Gooch) (H. NR Env.)

Bill would create a "special" exemption from the definition of "special wastes" in order to mandate that the Natural Resources Cabinet treat utility waste from combustion of petcoke as a solid waste rather than a "special waste."

"Special wastes" include, under Kentucky law, fly and bottom ash from utility boilers and scrubber sludge from flue gas desulfurization equipment on electric power plants. The western Kentucky coal industry has been concerned with the increasing use of "petcoke", which is a waste by-product of petroleum refining, by Kentucky utilities since such use displaces coal.

KRC believes that the existing special waste regulations undermanage some utility wastes in some circumstances, particularly disposal of fly ash in ash ponds. A decision to require utility wastes to be managed as solid or hazardous wastes (and so disposed of in municipal or industrial landfills with appropriate liners, leachate collection, longer post-close care and bonding requirements) should be made based on categories that bear a reasonable relation to higher risks posed by that waste category.

Thus, KRC believes would support a requirement that certain categories of utility wastes such as fly ash be managed as solid wastes with higher standards for containment, groundwater monitoring, and post-closure care (since the literature demonstrates that the fly ash is where heavy metals sorb to the ash), but believes that absent information demonstrating that the toxicity or leaching potential of the wastes from petcoke combustion are inherently different or greater than other comparable utility wastes, that differentiating the categorization and management of the waste by fuel source is not logically related to environmental goals, and may instead appear to some to be an effort to increase the costs of use of the fuel relative to coal.

HB 185 (Ford) (H. Transportation)

Amends state law on highway signage to require Transportation Cabinet to allow specific highway service signs for bed and breakfast establishments.

HB 189 (Bather) (H. Transp) (-)

Creates a permit process by which the owner of a legally-erected highway billboard can apply to the local Highway District office for a permit to trim or prune trees and shrubs that obscure the "advertising device viewing zone," an area of 500 feet or more from the highway to the billboard. "Trim or prune" is defined not as one would commonly use the terms, but as "selective removal of vegetation" but cannot include clear cutting.

The bill requires that any trimming or pruning be conducted by a certified arborist, and that the vegetation "trimmed or pruned" be replaced with native vegetation on a 2-1 basis.

Numerous questions are raised by the bill, and will be examined further by KRC in a second alert during the next week. Historically KRC has disfavored the destruction of public trees and shrubs from highway rights-of-way in order to assist the billboard industry to deliver its "message" to the motoring public.

HCR 10 (L. Clark) (H. Tourism Dev. & Energy) (+)

Resolution calling on the Federal Energy Regulatory Commission to delay implementation of the "Standard Market Design" rules proposed to govern interstate electricity transmission, pending a cost benefit analysis, and calling on the Kentucky Energy Policy Advisory Board and the PSC to perform such a cost-benefit analysis to determine the effect of the SMD rule on Kentucky's electricity consumers.

HCR 20 (Buckingham) (H. Education) (posted in committee)

Resolution supporting creation of an "Energy Education Foundation" to produce a "highly skilled energy workforce" and directing Interim Joint Committee on Education to study energy education for students and consumers.

HR 52 (Lindsay) (H. State Govt)

Modifies House Rules to require fiscal note for any bill that will fiscally affect local governments through imposition of a mandate, removes threshold requirement that the effect be "significant". [This broadens the fiscal note requirement even as the Senate Rules amendment adopted the "significant" threshold.]

HR 58 (Stumbo) (H. Floor With FA1)

House Rules of Procedure for 2003 Session.

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