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

Legislative Update: New And Notable This Week  Posted: February 12, 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

February 12, 2003

2003 REGULAR SESSION: Alert #3

New And Notable This Week

With 19 legislative days remaining, expect many new bills to be filed between now and the last day to introduce new bills, February 18.

Here is a profile of several new and notable bills affecting the environment that have been introduced since the last update:

Senate Bill 135 (Kelly) (+)

Bill proposes comprehensive statutory language addressing disposal of sewage. Requires all sources of sewage to be connected to an approved on-site sewage or sanitary sewer system. Where sanitary sewer systems are accessible, connection is required. Use of sinkholes, cesspools and straight pipes is prohibited, as is discharge of stormwater into sanitary sewer systems. Where a sanitary sewer system is available, an existing on-site system can be used for up to 10 years if properly functioning and approved.

KRC has only one concern with the bill, which is that the language defining the accessibility of centralized sewer systems as "reasonable proximity" to a property may unduly limit the responsibility of a developer to extend a connection to such a system for a new subdivision. The availability of an existing central sewer system relative to a new development, for purposes of deciding whether to require that the new development connect to that system rather than using on-site systems, should depend on the scale of development and cost, rather than physical proximity to the existing sanitary system.

Senate Bill 137 (Guthrie)

This bill revises the existing law concerning challenges to county proposals to become obligated for bonds or notes. The bill is substantially the same as HB 48 from the 2002 session, and is in response to the most recent use of this statute by Warren County, whose request to become obligated to pay debt service on bonds and notes for the controversial "Transpark" was challenged by a Warren County taxpayer. The bill would eliminate the "County Debt Commission," and would subject all requests for approval of a county's proposed bond or note debt to a formal evidentiary hearing before a hearing officer and then to State Local Debt Officer. The bill clarifies that the hearing proceedings will be in accordance with Kentucky's administrative hearings law, KRS Chapter 13B.

Given the superficial manner in which the County Debt Commission reviewed the appeal of the Transpark bond issue, KRC sees no loss in eliminating that level of review and proceeding directly to Circuit Court from the State Local Debt Officer's decision.

Senate Bill 138 (Harris)

This is a counterpart to a House bill seeking to allow the Public Service Commission to use other formats to record proceedings rather than stenographic transcripts, and allowing a party to request stenographic transcripts prior to the hearing.

Senate Bill 142 (Tori)

This bill would allow federal agencies to participate in water commissions and to jointly operate water systems with cities, water districts and water associations.

Senate Bill 146 (Harris)

Establishes standards for engineering practices for construction and maintenance of electric utility plants and facilities.

Senate Bill 147 (Harris) (+, but needs amendment)

Revisions to electric power plant siting bill that would clarify board authority to hire consultants, to give the Board explicit authority to enforce its orders and to suspend or revoke authorizations for material noncompliance, to codify the Board regulation creating a requirement of filing a "Notice of Intent" before filing an actual application for siting approval, and clarifying Board power to consider petitions for rehearing of their orders and decisions.

One aspect of the law that this bill does not address, and which needs legislative attention, is the failure of the Board to require that transmission lines constructed to support merchant plants be included in siting applications. The intent of the siting bill was to require inclusion of those lines in any siting application, yet the Board failed to require that such lines be included in the Kentucky Mountain Power case, resulting in no advance review or approval of the siting impacts those lines by either the PSC or the Board.

Senate Bill 148 (Harris)

Requires power produced by electric facility generator to be first dedicated to retail sale customers within that suppliers' territory.

Senate Bill 150 (Worley) (+)

Extends Kentucky River Authority power to control the water supply future of the communities in the Kentucky River basin including requiring KWA approval of any certificates of convenience or other PSC approvals over water facility ownership, service and supply for any water utility providing service within the Kentucky River Basin, and requiring that water planning within the basin by local governments be consistent with KWA plans and regulations.

Senate Bill 159 (Harris) (-)

This bill is the latest in a long line of so-called "takings" bills that require government to engage in takings implication assessments before it adopts any regulation that in any way "impedes the use of property" or which proposes conditions or requirements on the use of property.

The instances in which government regulatory action results in a "taking" of property are extremely rare, and a bill which would require takings assessments for a broad range of rules and regulations and permitting actions intended to protect public health and the environment, regardless of how trivially they affect the use of property, would have the effect, intended by some groups advocating these "takings assessment" laws, of slowing government's ability to effectively regulate in the public interest.

Similar bills have been rejected during previous sessions, and KRC will vigorously oppose this bill.

House Bill 357 (Lee and Weaver)

House counterpart to Senate Bill 142 (see above).

House Bill 375 (Brinkman and others) (+)

Requires Transportation Cabinet to erect noise barriers where requested by a local unit of government, for transportation projects involving construction or reconstruction of highways.

House Bill 377 (Callahan & Fischer)

Modifies existing law on code enforcement boards to provide for service by posting and by mail where alleged offender cannot be personally served a citation regarding violations of local ordinances.

House Bill 396 (Fischer)

Under the guise of promoting "uniform application of a single body of civil rights law" this bill seeks to prohibit local governments from enacting or continuing ordinances in the area of civil rights, such as prohibiting discrimination based on sexual orientation.

House Bill 401 (Nelson) (Support concept, but needs major revision)

This bill allows private forest land that is under a forest stewardship or forest management plan would be assessed at a lower property tax rate than would otherwise attach to the land, as a mechanism to encourage forest stewardship.

While KRC supports the measure conceptually, the bill has numerous problems that need attention in order to better focus the bill and to provide meaningful incentive for non-industrial woodland owners to better manage forestlands:

a. It will create new demand for Division of Forest support for private landowners, including inspection and compliance activity, without an appropriations to support that increased workload;

b. It applies to industrial forestlands, which are already under management plans and are not in need of subsidies through lower taxes;

c. It limits the availability of the lower tax rates to forest lands managed for timber production, rather than allowing forests managed for wildlife and other purposes to be eligible; and

d. It requires that forest lands that are converted from the classified status pay the difference in taxes for all the years in which the land was managed as forest.

With these changes, KRC believes the bill would be deserving of support.

House Bill 407 (Riggs) (-)

Provides immunity for airport boards and employees for injuries and damage from actions and inactions in response to aviation threats, except in the case of gross negligence, bad faith or willful misconduct.

While some limitation on liability for responses to emergency situations may be appropriate, the bill concerns KRC because it limits liability for injury caused by events, and response to events, that are well within the control of the airport, such as hazardous material spills and releases. In cases where failure an aviation threat occurs due to factors within the control of the airport management or board, as contrasted to an external threat, such as the failure to properly control hazardous materials, and harm results, no immunity should be conferred.

House Bill 408 (Pasley) (+)

Expands scope of current law prohibiting a person in a city or urban-county from allowing a public nuisance or health hazard to develop from accumulations of rubbish or excessive growth of weeds or grass, to include counties.

House Bill 411 (Marcotte and others)

Bill parallels senate bill creating a new crime of "abuse of public trust" for misappropriating public money or property.

House Bill 435 (Thomas)

Bill includes numerous reforms in animal cruelty and welfare laws.

House Bill 458 (Collins) (-)

This bill includes changes to oil and gas laws sought by the Kentucky Oil and Gas Association. A number of the proposed changes raise questions, but the most problematic is a provision that would prohibit local communities from adopting ordinances that would in any manner regulate oil and gas exploration, production, development, gathering and transmission, unless the local community did so through planning and zoning.

KRS 67.083 recognizes the broad authority of counties to act to prevent nuisance and to advance conservation of natural resources, while requiring that in those areas where the state has acted, the locality must be consistent. This broad preemption of local government police powers is inappropriate and unnecessary, particularly since the state Department of Mines and Minerals lacks a comprehensive program that addresses siting and which is adequate to fully address public health and nuisance issues.

HJR 129 (Meeks and others) (+)

Resolution would direct the Governor's Commission on family Farms and Center for Agricultural Development to study and report on the competitive and economic status of black farmers in Kentucky.

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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.

WANT TO WATCH THE COMMITTEE MEETINGS?

Kentucky Educational Television, through its website at http://www.ket.org/legislature/2003_regular_session.htm, provides real-time coverage of certain committee meetings and the House and Senate sessions. Additionally, those committee meetings that are taped on a daily basis can be viewed in the KET archives.

For example, to see KRC's testimony in opposition to Senate Bill 71 in the Senate State and Local Government Committee, click "Current Session" and scroll down to "February 11 Senate State and Local Government Committee."

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