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

Legislative Update #1 2004  Posted: January 17, 2004

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 17, 2004

2004 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 2004 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

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 (so we can take all the blame!)

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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 1-866-301-9004. The toll-free meeting schedule 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 an entire committee. The TTY message line is 1-800-896-0305. En Espanol, el nombre es 1-877-864-0202.

THE BEST WAY TO REACH LEGISLATORS

Did you know that for a single fax to 502-564-6543, you can reach all of the legislators that you want to contact? You can send a faxed 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 web page has a list of all legislators and all committee members.

WEEK TWO: 419 BILLS AND 114 RESOLUTIONS ALREADY FILED

On January 6, 2004, the General Assembly convened in Frankfort for the regular "long" legislative session. During weeks 1 and 2 of the session, a number of bills relating to the environment have been filed. The General Assembly will be in session until adjournment on April 13.

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

SB 1 (Williams)(Passed Senate, To House) (-)

SB 1 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. In a successful effort to attract one additional Democratic vote needed to pass the amendment, the Senate amended the bill to provide a base of $250,000 in punitive or exemplary damages below which the General Assembly could not cut off awards.

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 seek to stem jury awards by artificially limiting or eliminating, 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. Appellate mechanisms within the judiciary already exist to assure that punitive damages bear a reasonable relation to the conduct of the negligent party.

SB 3 (Tapp) (S. A&R)

Income and license tax credit for producers of biodiesel (at least 3% mix of animal or plant oils with petroleum diesel).

SB 10 (Seum) (S. State & Local Govt) (-)

Bill would preempt local governments from adopting a smoking policy relating to private buildings. The bill, and several others which seek to preclude local government smoking bans for restaurants or other public establishments, or to punish local governments by withdrawing tobacco settlement monies, are an unwarranted and unjustified state intrusion into the powers traditionally reserved to local governments to establish public health policy where the state has not acted.

SB 11 (Scorsone) (S. State & Local Govt) (+, amendments needed)

Modifies existing blasting law to provide the Department for Mines and Minerals with the authority to adopt more restrictive controls on blasting in order to prevent damage to structures within urban-county government areas, and to restrict blasting to daylight hours, and in order to prevent ground motion at greater than 300 feet from a blast.

The state oversight and control of mine and quarry-related blasting in Kentucky is inadequate, in many cases, to prevent damage and annoyance to other property owners. Fundamental revision in the assumptions and implementation of state blasting standards is needed to protect the reasonable expectations of urban and rural landowners that mine and quarry blasting will consider the site-specific circumstances and relative location of the proposed operation and surrounding structures, and will adopt meaningful and enforceable standards for pre-blast surveys, during blasting monitoring, and compensation for damage suffered.

The bill needs revision in order to strengthen the scope and mandate.

SB 12 ( Buford) (S. State & Local Govt)

Proposed constitutional amendment requiring review by a medical malpractice screening panel prior to filing a civil action for medical malpractice. Opinion of panel is admissible but not binding on court.

Unlike SB 1, this proposed amendment encumbers by creating a review panel process as a predicate to filing suit, but does not extinguish the right to recover damages for medical malpractice.

SB 22 (Scorsone) (S. Eco. Dev., Tourism & Labor)

Creates tax credits for rehabilitation and reconstruction of qualifying historic properties.

SB 27 (Karem) (S. Judiciary)

Provides mechanism for severing determination of the right of a condemnor to condemn multiple properties from valuation of individual parcels.

SB 33 (Karem) (S. Judiciary) (+, amendment needed)

Empowers agencies, in their discretion, to employ alternative dispute resolution (mediation, facilitation, collaborative problem solving, consensus buildings, and regulatory negotiation) to resolve disputes (including facility siting, comprehensive planning, growth management, environmental cleanup, and infrastructure design).

While KRC supports appropriate use of voluntary ADR, language is needed to assure that the employment of ADR does not override or compromise existing requirements for prompt enforcement of environmental laws and regulations.

SB 34 (Tapp) (S. Licensing)

Creates licensing process and oversight board for those engaged in “home inspection.”

SB 37 (Boswell) (S. Ag. NR)

Agency revisions to existing statutory provisions relating to electrical equipment and mine safety.

SB 49 (Roeding) (S. Veterans, Military Affairs & Public Protection)

Exempts from open meeting and open records laws disclosure of information relating to airport security, government communications systems, hospital terrorism response plans, security plans for public and private facilities, and utility security plans. The latter provision needs clarification to assure that disclosure currently required under state and federal laws relating to storage and use of hazardous materials by industrial and commercial facilities, and facility siting laws, is not abridged.

SB 50 (Roeding) (S. State and Local Govt) (-)

Bill seeks to deprive Governor’s office of ability to issue emergency regulations in order to protect human health and the environment, instead restricting issuance of emergency regulations to cases of imminent danger to public health, safety, or welfare, or property or environment.

The executive branch should not have to wait idly by until a threat to human health or the environment becomes “imminent” prior to acting to prevent that threat. Sufficient legislative oversight exists with the legislature in annual sessions, to address any perceived overuse of executive emergency powers.

SB 58 (Denton) (S. State & Local Govt) (-)

Mandates annual development by each state agency and biennial recommendations by the Governor on a list of nongovernmental functions that could be privatized, using only the relative cost of performing the function as the benchmark.

SB 68 (Harris) (S. Ag. NR) (-)

Bill seeks to dissuade local governments from enacting any restrictions relating to smoking in non-governmental buildings by denying that community access to tobacco master settlement monies for agricultural development in that county.

The bill was heard in committee but not voted on at the request of the sponsor, on January 15.

SB 69 (Harris) (S. Ag. NR) (+, amendments needed)

Bill makes a matter of statute the existing regulatory prohibition against a contained landfill causing a public nuisance, and if a violation is issued for causing such a nuisance, the law requires Cabinet to modify the contained landfill permit to include new conditions to abate the nuisance, which may include barriers to control debris, sound, or light, or regulation of hours of operation, and monitoring for odor.

While the bill needs some strengthening, it is a positive step towards requiring the Cabinet to consider regulation of hours of operation and better controls on noise, odor and lighting; areas where the Cabinet has declined to exercise available general authority under existing regulations.

SB 74 (Seum) (S. Veterans & Military Affairs)(-)

Bill creates an Office of Homeland Security attached to the Governor’s Offices, to coordinate funding and state assessment and response to acts of war and terrorism.

The creation of a new agency appears duplicative of and redundant to the charge of the existing Division of Emergency Management, which by law is already empowered to develop and coordinate for the Governor all matters pertaining to the state comprehensive emergency management program and disaster and emergency response of the Commonwealth. At a time when the new administration has collapsed such significant governmental functions as labor, utility and environmental protection into one agency, creation of a new agency is questionable. The proposed funding coordination and tracking could be added to the existing mandates of the Division of Emergency Management without the new overhead cost.

SB 76 (Denton) (S. Judiciary)(-)

Bill would remove oversight of hearing officers for administrative hearings under KRS Chapter 13B from the Office of the Attorney General and transfer that function to the Department of Justice for all administrative hearings where the individual agency is not statutorily authorized to conduct its own administrative hearing. Bill would also eliminate the ability of several agencies to employ their own hearing officers, including the Mine Safety and Review Commission.

SB 77 (Harris) (Senate Floor)

Bill confirms reorganization within Department of Agriculture and change of names of several Division to reflect increased environmental emphasis.

While KRC does not oppose the bill, KRC would oppose any transfer of regulatory functions over water quality, floodplain management, waste or air pollution related to agriculture, (including industrial feedlot operations) from the Environmental and Public Protection Cabinet.

SB 89 (Roeding) (-)

The latest iteration of a “takings” bill, this version seeks to impose on government agencies the burden of conducting “takings” analyses for every rule, license, permit, or other action “impeding” in any manner the use of property.

Takings” bills such as this are solutions in search of a problem, since existing law protects reasonable investment backed expectations from government regulation that constitutes an unreasonable interference with those expectations, and also protects against government taking by physical intrusion.

The bill is wasteful, requiring development of agency “takings” analyses in cases that would never, under existing law, rise to a taking. It is arbitrary, exempting regulations on industrial agricultural operations from takings analysis but requiring analyses on all other public health, labor, environmental and other regulations.

The bill does not advance the public interest in permitting and licensing, but instead is a tool for delaying or avoiding government permit conditions that can be invoked only by the person seeking the permit or license, and which does not consider the effects of government permitting or licensing on adjoining landowners.

The bill violates takings law, allowing a person to claim a takings where only a portion or a property or one use of property is diminished by government regulation.

Justice Holmes remarked that government could hardly go on if it had to compensate every landowner for any effect, however trivial, of government regulation on the value or use of land. Interfering with the ability of government to regulate in the public interest appears to be precisely the goal of this perennial bill, and KRC will vigorously oppose this anti-public, anti-health, anti-environment, anti-labor bill as it has in the past. A more in-depth analysis will be posted as the bill is considered by committee.

SB 91 (Scorsone)

Proposed reforms intended to assist in addressing medical malpractice insurance crisis, including establishment of a non-profit authority by the state to provide medical malpractice insurance to physicians.

SB 95 (Robinson) (-)

Bill would prevent local planning and zoning agencies from restricting the location of firearms dealers, importers or manufacturers in any place where any other business may locate.

KRC opposes this type of special legislation intended to provide any business preferential status to avoid reasonable restrictions on siting and operation of businesses within commercial, residential and industrial zones in a community. Existing constitutional and statutory due process protections exist to prevent arbitrary or capricious governmental zoning and planning decisions relative to commercial and industrial activities.

SR 1 (Williams)

2004 Senate Rules of Procedure.

SJR 3 (Roeding) (-) (Senate Floor)

Bill mandates termination of vehicle testing program for northern Kentucky counties by November 1, 2004.

If enacted, the bill would be void under the Supremacy Clause of the U.S. Constitution as a direct interference with the obligation of the state to maintain the approved State Implementation Plan for northern Kentucky under the Clean Air Act (which includes the vehicle testing program) until approval is sought by the state and given by EPA that the program can be removed from that plan without an adverse effect on the attainment and maintenance of air quality in the northern Kentucky region. KRC’s statement in opposition to the bill is available on the website at www.kyrc.org.

SJR 12 (Roeding) (-)

Substantively identical to SJR 3.

HB 1 (Richards) (Committee Substitute, House Floor)

Revisions strengthening aspects of the Executive Branch Ethics Code

HB 8 (Yonts) (House Labor and Industry)

Counterpart to SB 37; agency bill revising provisions of mine safety laws relating to electric equipment.

HB 53 (Marcotte) (H. Local Govt)

Revises vehicle emissions control program for northern Kentucky and under any county program (including Metro Louisville) to exempt first four years of new vehicle from emissions testing.

HB 66 (Gray) (H. Local Govt) (-)

Prohibits any local government regulation of tobacco use other than on property of local government.

HB 78 (Meeks) (H. Local Govt)(posted) (+)

Bill creates financial incentives to encourage development of interlocal county agreements for sharing and coordinating fire, police and emergency/rescue services.

HB 94 (To Senate)

Bill allows joint sponsorship of bills introduced in both chambers.

HB 109 (Meeks) (H. Local Govt, posted) (+)

Bill creates several mechanisms to encourage increased use and development of interlocal agreements for sharing and providing governmental services by counties and special districts.

HB 112 (Nunn) (H. Judiciary)

Revisions to state law governing use and filing of assumed names by corporations and other business entities.

HB 121 (Sims) (Withdrawn) (-)

Bill, now withdrawn, had banned local government regulation of tobacco use, including eliminating existing local government authority to establish policies on smoking in local government offices and workplaces.

HB 127 (Belcher) (H. Ag. & Sm. Business) (+)

Creates Pest Plant Board to foster public awareness and coordinate government effort to eradicate noxious invasive plant species.

HB 132 (Webb) (H. Labor & Industry) (+)

Bill modifies standards for licensure and continuing education for building and plumbing inspectors to require education and training on prevention, detection and remediation of mold and other indoor toxins.

HB 133 (Brinkman) (H. Judiciary) (+, amendment needed)

House counterpart to SB 33

HB 142 (B. Smith) (H. Transp) (+)

Requires helmets for bicycle use on highways and bicycle paths by those 16 years of age and under, imposes liability on parents to assure such use, knowing failure of which is punishable by fine.

HB 143 (Fischer) (H. Local Govt, posted) (+)

Bill clarifies service requirements for citations issued by code enforcement officers.

HB 145 (Hoffman) (H. H&W) (+)

Requires radon mitigation systems to be installed in all new schools, daycares and homes constructed in high-radon areas (as determined by the Cabinet for Health Services); allows local governments to require radon mitigation systems in other areas after one year, and allows an income tax credit for the costs of installed systems.

HB 148 (Burch) (Committee Substitute, to House Rules) (+)

Restricts sale of junk food (high sugar, fat) in schools during school day; provides for continuing education for school food service directors and cafeteria managers.

HB 155 (Marzian) (H. Transp) (+)

Requires use of protective headgear for all-terrain vehicles; prohibits use of ATVs by children less than 16 years of age.

HB 166 (Baugh) (H. Judiciary)

Extends from 15 to 20 years the right to file an action to recover property where adverse possession is claimed, with right of action not accruing until filing or giving of notice by adverse possessor.

HB 167 (Meeks) (H. State Govt, posted) (+)

Creates Kentucky Native American Heritage Commission attached to Education, Arts and Humanities Cabinet to foster awareness of influences of Native Americans in Kentucky’s history and culture.

HB 179 (J. Coleman) (H. Nr. Env, posted) (-)

Bill exempts local governments from requirement to obtain stream construction permit for reconstructing, improving or replacing bridges and low water crossings across streams.

As written, the bill is unclear, and appears to specifically exempt local governments from permit requirements for bridge or low water crossing replacement or improvement, overriding existing language requiring permits where the work results in filling, raising or obstruction of water flow in a stream or floodway.

The state Division of Water already exempts from the hydraulic analysis requirement the replacement of structures that do not cause an increase in flood height or change in stream channel characteristics. Absent proper engineering and hydraulic analysis for all other structures, the replacement or improvement of structures in streams or floodways can inhibit stream flow and cause changes in flood response and resulting scouring of stream channels and increases in flood heights, adversely affecting public safety and private property. The ownership of the structures is logically unrelated to the potential for adverse consequences. KRC opposes exemption of local governments from the permit review requirement for bridge or low water crossing improvement and replacement.

HB 190 (Brinkman) (H. Judiciary)

Significant revisions to law concerning partnerships, proposing to adopt with some changes the Uniform Partnership Act.

HB 191 (Gray) (H. Transp)

Directs emplacement of state recreational and cultural interest signage along certain western Kentucky highways to promote Barkley and Kentucky Lakes.

HB 197 (Hoffman) (H. Labor & Industry, posted) (+)

Requires development and distribution of information on radon when building permit for residential construction is issued, and requires seller disclosure of any radon testing performed, results and any mitigation.

HB 199 (Ballard) (H. Transp) (Under review)

Bill clarifies standards for definition of what constitutes a public road and for acceptance of roads into county road system.

HB 202 (R. Adams) (H. Local Govt, posted)

Bill requires that where one entity furnishes sewer services to customers of another sewer utility, compensation shall be paid by agreement or under eminent domain law. Eminent domain powers are granted to local governments for sewage treatment facilities, and surcharges are allowed to recover the compensation paid in taking over the facilities.

HB 221 (Brinkman) (H. Judiciary)

Revisions to state limited liability company laws.

HB 240 (Moberly) (H. A&R)

Reaffirms that provisions in budget bill have force and effect of law and may substantively amend and alter provisions of other state laws.

HB 253 (Burch) ((H. Seniors & Military Affairs) (+)

Adds Commission on Fire Protection Personnel Standards to Kentucky Emergency Response Commission.

HB 261 (Feeley) (H. H&W, posted) (+)

Restricts sale of soda to school children during school day.

HB 281 (McKee) (+, with amendments needed)

Recreates Interagency Farmland Committee to review state agency projects converting more than 50 acres of farmland for non-farm use or for acquisition of more than 50 acres of farmland by government, and requires development of an agricultural impact statement and consideration of alternatives.

KRC supports elevating consideration of farmland conversion to nonfarm use, but believes that the process of review and consideration of alternatives should be expanded to include all projects undertaken, funded or approved by state agencies that convert more than 50 acres of farmland to non-farm use, including transportation, other infrastructure, facility siting, subdivision and other large-scale developments funded or approved by state government.

HB 289 (Geveden) (H. State Govt) (+)

Act establishing process for consolidation of counties by voters of those counties.

HB 295 (Bruce) (H. State Govt) (-)

Bill voids all regulations identified as deficient by the Administrative Regulation Review Subcommittee or other committees during the 2003 interim, including the needed revisions to state non-coal mining regulations. KRC believes that each set of regulations so identified should receive full review by the committees of jurisdiction rather than considering one bill voiding all such identified regulations.

HB 301 (McKee) (H. NR Env.)

Directs disbursement of unobligated funds in waste tire trust fund to grants for projects to manage waste tires, giving first priority to funding waste tire crumbing projects for use on athletic field surfaces.

HR 3 (Adkins)

2004 House Rules of Procedure

HCR 8 (Vincent) (H. Tourism Dev. Energy, posted)

Directs establishment of a task force to examine the development of the Lexington/Big Sandy Rail Trail.

HJR 12 (Marcotte) (H. Local Govt)(-)

House version of SJR 3 unlawfully directing closure of northern Kentucky vehicle testing program by state on November 1, 2004.

HJR 43 (Denham) (H. Transp)

Resolution urges Transportation Cabinet to continue to work with other agencies to develop signage program for agritourism events.

HJR 79 (Bather) (H. Judiciary)(+)

Anti-SLAPP suit resolution encourages state Supreme Court to Adopt rules of procedure for civil actions to provide immunity from civil liability for statements made before governmental bodies.

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