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Kentucky Resources Council, PO Box 1070, Frankfort, KY 40602 Phone [502] 875-2428

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

2003 Legislative Wrap-up  Posted: July 19, 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 26, 2003

2003 REGULAR SESSION WRAP-UP: Some good laws passed, some bad bills defeated, three real losses and one mixed bag.

The 2003 regular General Assembly session adjourned sine die yesterday until January 2004.

For the environment, the session was marked by further erosion of funding for environmental quality, by some defensive victories and a few positive bills, but no real gain in environmental protection and environmental justice.

This list profiles the bills on which KRC focused during the session and the outcome.

Thank you: You HAVE made a difference.

As you look over the list, you might wonder did your calls, your faxes, your e-mails to legislators make a difference? It is often difficult to quantify precisely the degree of impact that public involvement has on the resolution of legislative bills. Likewise, it is hard for us at KRC to gauge our impact, and during difficult sessions, when the public interest is at times discarded for the expediency of the moment and base political reasons, such as with the Governor's veto of the EQC budget and the Senate's failure to override that veto, it is easy to despair.

There is no doubt that your voices do make a difference, and that it is only by bearing witness for an environmentally healthy and just society that we will move this state closer to that goal. As Marian Wright Edelman observed,

God, lease help us remember that all the darkness in the

world cannot snuff out the light of one little candle. Help

us to keep lighting our little candles until a mighty torch

of justice sweeps our nation and the world.

Thank you, each of you, for lighting your candle during this session.

2003 Session: Some good laws were passed

Emergency Powers of Governor Restored

SB 71, amends existing law regarding administrative regulations and eliminates the "notice of intent" process that was imposed on state agencies in order to drag out the process for adopting regulations. The bill was amended at KRC's request by Senator Walter Blevins, to restore the power of the Governor to adopt emergency regulations where needed to protect human health and the environment. The original bill as introduced by Senator Roeding had deleted that power, allowing the Governor to act only where an imminent danger existed.

Due Process For Bond Appeals Strengthened

SB 137 revises existing law concerning challenges to county proposals to become obligated for bonds or notes, and passed with the amended language that KRC had sought in 2002. KRC represented Joey Roberts in a challenge to a controversial bond and note issuance for the proposed Warren County "Transpark" the first time in many years that the statutory appeal process had been used. The case highlighted the need to revised the appeal process, and this bill subjects 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, with appeal directly to Circuit Court (eliminating the appeal to the County Debt Commission). The bill also clarified that the hearing proceedings will be in accordance with Kentucky's administrative hearings law a matter disputed by the state in the Transpark case.

Emergency Response Plans And Citizen Oversight Strengthened

SB 162, drafted by KRC at the request of Senator Ed Worley, makes several positive changes in existing law regarding disposal of chemical weapons at the Richmond Blue Grass Depot, 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.

Mine Maps Become Public

SB 165, an important bill for landowners in coalfield regions, makes 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. 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. Iris Skidmore, a veteran attorney for the Natural Resources Cabinet, worked tirelessly to see this bill become law.

Outlaw Coal Companies Still Barred

HB 269, the budget bill, retained important language allowing permit blocking of surface coal mining permit applicants based on existing violations by owners and controllers of the applicant. The coal industry sought to have the language removed from this budget, but failed to do so.

Some bad laws avoided

"Takings" Bill Derailed

SB 159, sponsored by Sen. Ernie Harris, was the latest in a long line of so-called "takings" bills that 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. The bill has the intent and effect of slowing government's ability to effectively regulate in the public interest. KRC vigorously opposed the bill in committee. While it passed committee, the Senate leadership recommitted the bill to die in another committee.

Penalty Waivers Avoided

HB 108, which would have required each agency to develop a policy to allow reductions or waivers of civil penalties for businesses with up to 100 employees, was not heard after the sponsor, Rep. Palumbo, agreed to hold the bill in response to KRC and state agency concerns. A committee substitute calling for a "study" was not passed.

Gaming of Waste Laws Avoided

HB 159 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." Committee testimony suggested that petroleum coke, a waste by-product of petroleum refining, generates much less ash, and leaches lower levels of all hazardous metals than coal, (with higher levels of vanadium and nickel), and reflected that the intent of the bill was actually to raise the waste management costs of petcoke use in order to give cost advantage to western Kentucky coal. KRC opposed the bill, which was replaced by a committee substitute into a "study" of petcoke. The bill did not pass the Senate.

Trees Spared Billboard Chainsaws

HB 189, sponsored this session by Representative Paul Bather, would create a process for billboard companies to remove trees and shrubs from public rights-of-way in order to create a 500 feet "viewing zone" on the public highways. House Majority Floor Leader Greg Stumbo indicated that he would not send the bill to the floor for a vote, and it remained in committee.

Airport Liability for Hazardous Releases Maintained

HB 407, provided 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. The bill concerned KRC because it limited liability for injury caused by events, and response to events, that are within the control of the airport, such as hazardous material spills and releases. The proponents agreed to clarify the scope of the immunity to address KRC's concerns, but due to concerns from other quarters, the bill was not heard.

Damages For Coal Company Injuries Not Weakened

HB 552, which would have further weakened protections for landowners whose lands have been damaged by mining, was stalled by the sponsor after receiving information from KRC that the bill was far more than had been represented by the coal industry advocates. A 2002 enactment illegally creates an "easement" on behalf of coal mining permittees who have trespassed and caused damaged to others' lands, to gain access to those lands without the landowners' permission in order to abate violation. This bill would have weakened the right of the landowner to receive compensation for the damage caused by the coal company.

Legislature Does Not Mandate End To Coal Mine General Permit

HJR 140, the coal industry's 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, did not become law.

The state has reopened the coal mining general permit for comment, and KRC will be sending a separate alert on this issue later today.

Three Real Losses

HB 77, which would establish nutritional criteria for food and beverages in public schools, limits sale of soft drinks in elementary and middle schools until after school, and phase in daily physical activity requirements, in an effort to combat the rising rates of childhood obesity, died in Sen. Dan Seum's committee after passing the House.

HB 269 Veto #9 The decision by Governor Patton to veto the appropriation of $253,700 to the Environmental Quality Commission, and the failure of the Senate leadership to follow the House example and vote to override the veto, was the low point for the environment this session. While the Senate had zero-budgeted the EQC for FY 2003-4, the House and Senate conferees had included language indicating that the Natural Resources and Environmental Protection Cabinet would be required to support EQC at $253,700, and had provided $900,000 to the agency for that and other purposes. The Governor's action is shameful, and places the continued funding of the EQC at risk. While the Governor's office indicated that it would find funding for the agency, no firm commitment has been forthcoming from the Governor's office.

HB 473, which sought to clarify that electric 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, overwhelmingly passed the House but was not considered by Senator Harris' Agriculture and Natural Resources Committee. The issue of whether processed garbage that has not had recyclable plastics and paper removed is exempt from state and local waste controls is pending in the case of Walters v. NREPC and Kentucky Pioneer Energy, in which KRC has obtained a favorable Hearing Officer's Report and the matter is pending before the Cabinet Secretary.

And One Mixed Bag

HB 524, which included a version of House Bill 458, included changes to oil and gas laws sought by the Kentucky Oil and Gas Association.

The most problematic provision seeks to 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. A Senate amendment calls for the state Department of Mines and Minerals to develop regulations on gathering lines within 6 months of the effective date (nine months from now) and to develop regulations on other aspects of the industry, for which no deadline is provided.

KRC opposed the law because it failed to include a clear requirement that no local preemption would occur until state standards were in place. While the oil and gas interests believe the law preempts all local government action (except zoning) on the effective date of the Act, KRC believes that the language of HB 524 does not clearly indicate a legislative intent for immediate preemption, and that the better reading, and one which avoids a gap in regulatory controls over oil and gas abuse, is that local governments are preempted only after state controls are imposed on a particular oil and gas activity.

Letcher County is moving forward to adopt an ordinance protecting public health, safety and property from damage due to the siting of gathering lines, and KRC will aggressively defend the right of that county and others to maintain local ordinances until and unless state regulations are adopted.

It is ironic that, in the effort of the oil and gas industry to deprive Letcher County of their authority to regulate abusive industry practices, the industry lobbyists were forced to pay the price with a state mandate for comprehensive regulation of all aspects of the industry's impacts on public health, safety and property. In the short term, if the industry is successful in obtaining a court determination that counties are immediately preempted, those who would abuse the law will have a heyday. In the longer term, an adequate statewide regulatory program may emerge, under an administration with an adequate budget and the regulatory will to implement such a program. The public owes a debt of gratitude to the citizens of Letcher County and their courageous public officials, and for KFTC, for bringing the issue to the forefront and creating a political environment in which the industry accepted statewide regulation in order to avoid county controls.

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