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

2003 Legislative Update #5  Posted: March 2, 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

March 1, 2003

2003 REGULAR SESSION:

8 LEGISLATIVE DAYS LEFT

781 BILLS AND 288 RESOLUTIONS

On February 4, the General Assembly began the second part of the 2003 Session, which will adjourn on March 25. With eight legislative days remaining, there are many bills of interest and concern to the conservation and environmental community whose fate will be decided in the upcoming weeks.

With just 8 days remaining, KRC has removed from this tracking list the bills that will likely not become law because of time or for other reasons. The February 22 Update, available on the web at www.kyrc.org, profiles all bills that KRC tracked this session.

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. Where committee substitutes and floor amendments have occurred, this is noted. Where the bill is noted as being in "Rules" the reference is to the Rules Committee, which can refer a bill back to another committee or to the chamber floor for a vote.

DO YOU WANT OFF THE LIST? HERE’S HOW

If you do not wish to receive this list, please send an e-mail message to fitzKRC@aol.com and you will be removed immediately from the distribution list. Feel free to forward this to anyone you feel might be interested, and to utilize, reprint or quote from the bill analyses. We ask only that you attribute KRC as the source when you use our analytical material.

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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?

KET's website, 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.

SB 2 (Williams) (H. 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) (H. Floor)

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) (Recommitted to H. A&R)

As originally drafted, KRC opposed SB 11 because it mandated 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.

As modified by committee substitute, the bill simply provides for reinstatement of registrations that have been revoked for non-testing of vehicles, after October 2003 when the Jefferson County VET program is required by statute to end. Senator Seum agreed to place a floor amendment on the bill to require payment of a $22 reinstatement fee, to discourage violations of the vehicle testing requirement before October 2003. With those changes KRC has withdrawn objections to the bill.

SB 44 (Seum / Tapp) (H. Transp)

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

SB 47 (Tori) (House Rules)(-)

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) (H. Rules)

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.

SB 64 (Harris) (H. Rules)

Amend existing law to exclude county-run sewer systems from Public Service Commission control.

SB 65 (Buford) (S. Rules)

Amends several sections of Executive Branch Ethics Code.

SB 70 (Roeding) (House State Govt)

Expands legislative oversight of university and college memoranda of agreement, and over personal service contracts of executive branch.

SB 71 (Roeding) (House State Govt)

Amends existing law regarding administrative regulations. Eliminates "notice of intent" process for promulgating regulations.

KRC originally opposed because it prevented emergency regulations from being adopted where needed to protect human health and the environment unless there is an imminent danger. Sen. Blevins filed floor amendment to restore ability of Governor to adopt e-regs to protect human health and the environment, and the Senate approved the amendment. KRC has withdrawn opposition to the bill, and appreciates Sen. Blevins, Sen. Karem's and Sen. Worley's assistance in restoring the language.

SB 80 (Buford) (S. Rules)

Amends several sections of Executive Branch Ethics Code.

SB 94 (Roeding) (H. Rules)

Creates new crime of abuse of public trust, allows for forfeiture of assets and disqualification from public office.

SB 137 (Guthrie) (House Local Govt)

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.

SB 138 (Harris) (H. Tourism Dev. & Energy)

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.

SB 142 (Tori) (S. Rules)

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

SB 146 (Harris) (H. Tourism Dev & Energy)

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

SB 147 (Harris) (House NREnv)

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. Sen. Harris did not agree to make this needed amendment, even though the Public Service Commission / Board agreed with the need to clarify the law, because industry did not like the change.

SB 159 (Harris) (S. Rules)(-)

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.

SB 162 (Worley and Jones) (House)(+)

Companion bill to HB 474, this bill addresses chemical agent disposal at Bluegrass Army Depot, making several positive changes in existing law, including: creation of an Office of Liaison within the host community funded by the permit applicant to coordinate community oversight of the destruction of chemical weapons; provision assuring that no chemical agent destruction will occur under a "research, development and demonstration" permit except for pilot scale operations to prove-out the technology; and assuring that the local community emergency response plans including necessary infrastructure improvements are in place prior to operation of the chemical agent destruction facility.

SB 164 (Leeper) (HNRenv)(+)

Exempts controlled prescribed burns by state agencies on lands owned or managed by state agency from seasonal limits imposed on controlled burns.

SB 165 (Harris) (House NREnv)(+)

Important bill for landowners in coal field regions, this bill will make public the mine maps on mined-out areas that are in the possession of the Revenue Cabinet and the final or abandoned mine maps submitted to the Department of Mines and Minerals. There is no logical basis for preventing public access to maps depicting mined-out areas. Access to these maps will assist communities in scrutinizing new mining and waste impoundment proposals, and assist landowners whose property has suffered damage to determine whether damage to land and water resources is related to past underground mining.

SB 170 (Jones and Williams) (House)

Bill to name the Pine Mountain Trail Park, which was authorized by the 2002 session, the "Harold E. Rogers Pine Mountain Trail State Park."

SB 221 (Williams)(House)

Bill makes several changes to composition of legislative committees, amends process for legislative oversight of executive orders, and proposes a legislative oversight of administrative regulations to replace current unconstitutional approach in KRS Chapter 13A. new approach would provide that regulations found deficient by legislative committees during interim period will be sunset by enacting a statute terminating the regulation during the subsequent legislative session.

SCR 71 (Roeding and others) (S. Rules)

Directs a study of areas of growth to identify factors contributing to economic growth, impacts on and needs in the area of public infrastructure to support growth, and the relationship of growth to economic development projects.

HB 8 (Nunn) (Recommitted To H.A&R)

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 18 (Marcotte) (Senate Floor)

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) (S. State Local Govt) (+)

Proposed constitutional amendment on the budget 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. House Committee Substitute provides for gubernatorial review and veto right and provides that no compensation will be paid to General Assembly members after 60th legislative day.

HB 28 (Callahan) (S. A&R)

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 66 (S. State & Local Govt)

Allows joint city-county departments to manage park systems.

HB 77 (Burch and Feeley) (S. Veterans Committee) (+)

Seeks to improve child health in schools through controls on sale of junk foods and soft drinks in vending machines. Establishes nutritional criteria for food and beverages in public schools, limits sale of soft drinks in elementary and middle schools until after school, and phases in daily physical activity requirements, all in an effort to combat the rising rates of childhood obesity.

HB 81 (Meeks) (S. A&R)(+)

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 84 (Meeks) (S. Education)

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

HB 98 (Wayne) (S. 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 108 (Palumbo) (S. Eco Dev Tourism)

Bill originally required each agency to develop a policy to allow reductions or waivers of civil penalties for businesses with up to 100 employees. KRC opposed, believing 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, not merely based on the size of the violator.

Rep. Palumbo agreed to hold the bill in response to concerns, and agreed to a committee substitute calling for a "study". KRC has withdrawn opposition and is neutral on the committee substitute.

HB 154 (Ballard) (Senate Consent)

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

HB 159 (Gooch) (S. Ag NR)

Bill originally created 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." "Petcoke", is a waste by-product of petroleum refining, generating much less ash, and lower levels of all hazardous metals than coal, with higher levels of vanadium and nickel. Testimony in committee underscored that the goal of the bill is to discourage petcoke use in order to advantage western Kentucky coal.

KRC opposed the bill, which was replaced by a committee substitute into a "study" of petcoke.

HB 185 (Ford) (S. Transp)

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

HB 238 (Geveden) (Recommitted to H. A&R)

Creates process for consolidation of counties.

HB 239 (Riggs and others) (Senate Transp.)

Allows for special license plate for "Friends of the Zoo."

HB 269 (Stumbo and others) (To Conference Committee)

The Executive Branch Budget.

The House bill funds the Environmental Quality Commission at 255,700 for FY 03 and 253,700 for FY 04, well below the Governor's recommended 262,500 in FY 03 and 276,300 for FY 04. The Senate Budget contains no funding for EQC beyond June 30, 2003. There are some legislators who view this as an opportunity to mollify the special interest lobbyists who would like to silence the EQC as a public forum, and to eliminate the important environmental trend monitoring and reporting that the EQC provides in its annual "State of The Environment" report. EQC deserves your support, and the House and Senate conferees should be contacted to include funding for EQC on FY 04..

HB 272 (Burch) (Senate Veterans)

Requires annual assessment of Commonwealth preparedness to respond to acts of terrorism and directs collaboration among various agencies.

HB 281 (Pasley and Butler) (S.Transp.)

Creates Motorcycle Advisory Commission for Highway Safety as advisory body to Transportation Cabinet.

HB 286 (Gooch) (S. A&R)

Creates a "Coal Development Fund" to finance projects approved by Kentucky Coal Council relating to projects to promote coal technologies and facilities.

HB 294 (Moberly) (S. Rules)

Governor's Proposed Judicial Branch Budget.

HB 296 (Wayne, Marcotte) (Senate Rules)

Provides for alternative project delivery method for procuring services for capital projects.

HB 298 (Riner) (To Senate Consent)(+)

Requires all local governments to comply with laws prohibiting employment discrimination based on disability, and requires reasonable modifications to accommodate testing and interviewing needs of persons with disabilities.

HB 304 (Stumbo) (recommitted to H. A&R)

Standardizes guidelines and process for issuance by county road officials of permits for county road and right-of-way encroachments.

HB 306 (Crenshaw) (Senate AgNR)

Allows use of videotape rather than stenographic transcripts for Public Service Commission hearings.

HB 343 (Riner and Stumbo) (Senate AgNR)

Increases penalties and allows for forfeiture of equipment for trespassing while engaged in fish or wildlife activities.

HB 357 (Lee and Weaver) (Senate Ag NR)

House counterpart to Senate Bill 142 regarding federal agency participation in water commissions. (see above).

HB 377 (Callahan & Fischer) (S. State & Local Govt)

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.

HB 408 (Pasley) (S. State & Local Govt)(+)

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.

HB 435 (Thomas)(S. State & Local Govt)

Bill includes numerous reforms in animal cruelty and welfare laws.

HB 449 (Denham) (Recommitted to H.A&R)

Limits liability of owner of an agritourism facilities that do not charge admission price or fee, to willful or malicious failure to warn of dangerous situations. The language tracks that of KRS 411.190, which provides a comparable limitation for liability for persons making land available for recreation without charge.

HB 458 (Collins) (S. AgNR)(-)

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.

HB 473 (Pasley) (S. AgNR)(+)

Bill seeks to clarify that utility plants using municipal waste as a fuel, whether processed or not, must demonstrate compatibility with local solid waste plan concerning importation of waste into a county for disposal as a fuel. Identical to House Bill 335 except that it includes an emergency clause.

HB 496 (Riggs) (S. State & Local Govt)

Bill adjusts size and terms of airport boards in Louisville and other counties with city of the first class.

HCR 20 (Buckingham) (Senate Education)

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.

HJR 83 (Moberly) (S. A&R)

Gives mandates, directives and initiatives contained in 2002-4 budget memorandum force and effect of law.

HCR 85 (Thomas and Pullin) (S.AgNR)

Creates Kentucky Rural Issues Task Force to study effectiveness of state and federal programs in addressing challenges facing rural Kentucky.

HCR 99 (Buckingham and others)(S. AgNR)(+)

Directs Special Subcommittee on Energy to study issues relating to coalbed methane extraction and to report to the LRC by December 1, 2003.

HJR 104 (Denham) (S.Transp)

Resolution relating to agritourism signage.

HCR 137 (McKee and others) (S. AgNR)

Directs study of farmland use and impact of farmland conversion on agricultural producers.

HJR 140 (Yonts) (H.Rules)(-)

Coal industry effort to undercut the new "Coal Mining General Permit" issued by the Division of Water by ordering the state Division of Water to rescind the permit and reinstate the previous general permit, and requiring that any new testing requirements imposed on coal mining operations on general permits be done by amending the surface mining program regulations.

The goal of the coal industry is to avoid the requirement to test wastewater discharges for oil and grease. The former permit allowed the coal companies to avoid testing for oil and grease if the operators implemented best management practices. There have been continuing pollution problems associated with coal mining operations use and disposal of oil and grease associated with the operation and maintenance of heavy equipment.

The resolution represents a questionable effort to insulate the coal industry from testing requirements necessary to protect instream water quality. The industry failed to comment on the proposed new condition of the general permit despite two opportunities to do so, and has not used the appropriate mechanism to challenge permit conditions that they believe to be unnecessary or unjustified. Instead the coal industry seeks to embroil the legislature in the business of revoking permits and directing the content of individual and general permits issued to protect water quality.

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