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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

Legislative Update #11: 2004 Regular Session - Bills We're Watching  Posted: March 28, 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

March 28, 2004

2004 REGULAR SESSION: Bills We're Watching

Legislative Update #11

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 eleventh update. It will be updated once more, and will be supplemented with more detailed analysis on key bills.

With but a few days left in the session, KRC has removed both those bills that have not emerged from the initial committee and those that have been returned to a committee to die. For a cumulative review of all bills introduced during the session that KRC has been tracking, visit the website and click on legislative Update #8.

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 TWELVE: ONLY 3 LEGISLATIVE DAYS REMAIN!!!!

On January 6, 2004, the General Assembly convened in Frankfort for the regular "long" legislative session. During the first twelve weeks of this 16-week session, a number of bills relating to the environment have been filed. The General Assembly will be in session until adjournment on April 13. Monday is a day set aside for concurrence with changes in bills made by the other chamber, and April 12-13 are days in which the legislature considers any vetos. The General Assembly CAN use one or both of those days to approve bills, by suspending the rules, in which case the bills passed on April 12 or 13 cannot be vetoed by the Governor.

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)(House Rules with House committee substitute) (-)

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 2 (Williams)(House Transportation)

Comprehensive revisions to transportation planning process, increasing legislative oversight and further restricting use of non-competitive bids.

SB 34 (Tapp) (Passed both Houses)

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

SB 37 (Boswell) (To Governor)

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

SB 77 (Harris) (passed both Houses)

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

SB 89 (Roeding) (H. Rules) (+)

As initially introduced, SB 89 was a problematic bill seeking to hamstring government action to protect the public and environment by requiring “takings assessments.”

A Senate Committee substitute, drafted by KRC, replaced the bill text with a requirement that the Office of the Attorney General develop a guidance document, to be available to state and local government, which summarizes the current state of federal and state takings law. Such guidance would be helpful to local governments, particularly planning and zoning commissions, in determining when zoning restrictions may trigger concerns regarding regulatory or physical takings.

SB 95 (Robinson) (H. Rules)(-)

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.

SB 114 (Harris) (House Transportation) (-)

Creates process for cutting trees in public rights-of-way along highways in order to assure billboards access to motorists on public highways. KRC believes it inappropriate to allow private parties to appropriate and destroy public trees and vegetation in order to assure that motorists can view their billboards.

Bill also reverses current state regulatory prohibition on multiple message (tri-vision) signage, which are more distracting to the motoring public and present greater negative visual and light impact.

SB 118 (Guthrie) (Became Law)

Removes current restriction prohibiting electric coops from selling power to entities other than state and local governments.

SB 142 (Buford)(H. Floor)

Extends jurisdiction of Airport Zoning Commissions to include private airports with a paved runway of greater than 2,900 feet.

SB 154 (Kelly) (H. Floor)

Reorganization bill amending various statutes to combine natural resources, environment, labor and public protection into Environmental and Public Protection Cabinet.

Oil industry filed a floor amendment modifying process in existing law for mediating disputes with surface owners. KRC objected, and worked through language in floor amendment #5 that assures that mediator recommendations as accepted by the Director of the Division of Oil and Gas will become permit conditions, and also requires justification in the record for any recommendations not accepted.

SB 179 (Westwood) (H. Floor) (+, with reservations)

Bill introduces a new Fletcher Administration initiative, creating a new Commission to develop an action plan to improve public health. Unfortunately, the findings and goals fail to include ending childhood lead poisoning – a public health initiative that should be among the highest priorities. Senator Westwood has indicated that while the administration does not want to amend the priorities in the bill, he will push to include a focus on childhood lead poisoning when the commission begins its work.

SB 197 (Westwood) (Passed both Houses, to Senate for concurrence)

Amends existing law governing powers and purposes of sanitation districts to include stormwater management. Sponsor agreed to two clarifying amendments proposed by KRC that were added as floor amendment.

SB 222 (Harris) (+) (To Governor)

Extends assessment of hazardous waste fee to fund state superfund, from June 2004 until June, 2006.

SB 224 (Harris) (+) (To Governor)

Extends deadlines for registering tanks for reimbursement for corrective action under the state underground storage tank program.

SB 246 (Stivers) (To Governor)(+)

The bill was proposed by regulated utilities to provide (with certain exceptions) for a hearing before the Public Service Commission on proposals to extend transmission lines of 138 kV or higher and longer than a mile in length, and for issuance of a certificate of public convenience and necessity by the PSC. Currently, such transmission line extensions are typically considered to be in the usual course of business and no certificate of public convenience and necessity is required.

Providing a new hearing right is an improvement, and while the bill sets no standard for review, the PSC has indicated that they do have the authority under this bill to consider matters that the PSC has traditionally held to be outside their jurisdiction - environmental quality, property values and scenic values.

SB 247 (Harris) (H. Rules)

Bill provides for net metering of electricity by generators of solar energy and provides that each utility regulated by the PSC file a tariff within 180 days of passage of the bill. Any net generation from the eligible customer produces a credit against future electricity use, not cash refund.

SJR 3 (Roeding) (-) (To Senate for concurrence with House amendment)

Bill mandates termination of vehicle testing program for northern Kentucky counties by November 1, 2004. Resolution was amended to require REPA approval prior to closing vehicle testing program. KRC believes as a matter of public policy, failing to include vehicle emissions testing in the array of ozone precursor reduction measures is unwise.

SR 79 (Seum) (Senate Floor) (-)

Resolution supporting Metro Louisville in its effort to obtain EPA approval for revision to air quality plan eliminating vehicle testing program. KRC believes that a modified vehicle testing program remains a necessary and cost-effective component of a multi-sector air quality improvement plan.

HB 1 (Richards) (S. State & Local Govt)

Revisions strengthening aspects of the Executive Branch Ethics Code

HB 132 (Webb) (S. State & Local Govt) (+)

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 148 (Burch) (S. State & Local Govt) (+)

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 167 (Meeks) (To Governor) (+)

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 188 (Weaver) (To House for concurrent with Senate amendment)(-, needs amendment)

Amends state open records law to allow exemption from disclosure of records that are determined by the Office for Security Coordination to pose threat from terrorism. Language remains too broad, potentially allowing exemption from disclosure of information on hazardous materials storage and use that is required to be made available to local emergency response agencies and to the public.

Senate included provision shielding from disclosure contributors to a U of L foundation.

HB 191 (Gray) (To Senate)

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

HB 199 (Ballard) (To Governor)

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

HB 202 (R. Adams) (To Governor)

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 289 (Geveden) (S. Floor) (+)

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

HB 295 (Bruce) (Became law) (-)

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 336 (R. Thomas) (S. State and Local Govt)

Amends existing law concerning animal control, including banning use of gunshot as method of animal euthanasia.

HB 395 (S A&R)

Executive Branch Budget for FY 2004-06. KRC’s testimony is available on the KRC website.

HB 483 (Wilkey)(S. A&R) (+)

Bill would provide repayment assistance for law school student loans for lawyers making a 2-year commitment to legal aid, public advocacy, commonwealth or county attorney position; would be funded by reprogramming 2% of court costs now returned to general fund.

HB 537 (B. Smith) (Senate Floor, consent)

Amends right-of-entry statute allowing coal mining operation that has damaged another’s property to obtain a right to enter that property without the consent of the landowner in order to abate a notice of violation issued by state. Bill is likely to be considered by any reviewing court as an unconstitutional taking by physical intrusion.

Sponsor has agreed to include two amendments – one requiring that the coal company carry insurance and supply a plan to the landowner for remedying the damage, and the other, clarifying that accepting the appraised damages does not waive a right to sue for punitive or compensatory damages or to seek other appropriate relief. With those changes, while KRC opposes existing law, KRC will be neutral on the bill. KRC has pending in Pike Circuit Court an action that challenges the constitutionality of the law.

HB 559 (Meeks) (S. A&R)

Allows voluntary tax check off for local government cemetery maintenance fund.

HB 560 (Meeks) (S. Licensing)

Reforms existing law governing access to private cemeteries, establishes process for reinterment and disposal of human archaeological remains in custody of government, requires permits for persons excavating archeological remains.

HB 577 (Buckingham) (To Governor) (+)

Bill creating comprehensive regulatory program for production of methane gas from wells drilled into coalbeds (Coalbed Methane or “CBM”). Original bill lacked safeguards for surface landowners and environment, but after negotiations, provisions were incorporated into committee substitute providing for surface and adjoining owner notification, development of reclamation plan and obligation to reclaim and restore any improvements damaged; requirement to submit groundwater protection plan if methane well is within ˝ mile of domestic or residential well, and coordination of permits with environmental agencies. KRC has indicated support for the amended bill. Uncaptured methane vented into the atmosphere is a potent greenhouse gas, and advance capture of methane improves underground mine safety. For more information on the original and amended bill visit KRC’s website at www.kyrc.org.

HB 596 (Denham) (S. Rules, consent)

Revises law on covered wooden bridge authority to involve Kentucky Heritage Council in development of management standards for preservation, maintenance and restoration of covered wooden bridges.

HB 609 (Thomas and Comer) (S. Floor, consent)(-)

Bill revises statutes addressing administrative regulations, to provide for a report on proposed regulations by the Commission on Small Business Advocacy; to require that the economic impact analysis accompanying proposed regulations specifically consider impacts on “small business” (defined as 150 employees or gross sales of less than 6 million dollars), and allowing agencies to consider waiving fines or penalties (rather than simply reducing or modifying) as part of the tiering of regulations.

While there are aspects of the bill that KRC does not object to, there is no need for a new statutory requirement of a small business commission report, since any party, including government and quasi-government entities, as well as commercial and industrial trade groups, can already file comments on proposed regulations. The bill has significant technical problems, including unworkable timeframes.

HB 626 (Pullin)(S. Floor)

Administrative regulation housekeeping bill, making several clarifications concerning deadlines for public comment, regulation filing, and other related matters relating to the legislative review of proposed regulations. Bill includes positive clarifications concerning comment period length and receipt of proposed regulations by e-mail.

HCR 8 (Vincent) (Passed both Houses)

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

HJR 43 (Denham) (S. State & Local Govt)

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

HCR 98 (Gooch) (to Governor)

Resolution would reinstate the 1995 noncoal regulations, which will otherwise sunset after an unsuccessful effort by the Patton Administration to strengthen those regulations during the last interim. KRC does not oppose this resolution, but will seek during the next interim to secure improvements in the regulation of noncoal blasting, impacts of noncoal mineral haulage, and groundwater protection from noncoal operations.

Amended in the Senate to clarify inclusion of rock asphalt mining under the 1995 regulations.

HCR 106 (To Senate Ag NR) (+)

Encourages electric utilities to cooperate with each other to meet reliability needs without new power lines, and encourages transmission-owning utilities to hold local hearings on any new high-voltage transmission lines.

HCR 114 (Denham) (S. Ag NR)

Concurrent resolution urges the state Division of Conservation to give greater consideration to previous unsuccessful applicants for soil erosion and water quality cost share monies.

HR 124 (Pasley) (S. Transportation)

Resolution extending the reporting deadline for the Off-Road Motorcycle and All-Terrain Vehicle Task Force until September 2005.

HCR 190 (R. Adams) (S. Floor, consent)

Reauthorizes the task force for funding wildlife conservation.

HCR 202 (Hall) (Senate Floor, the recommitted to S. A&R)(+)

Resolution urges federal Office of Surface Mining and state surface mining agency to encourage reforestation initiative for promoting reforestation of mined lands through use of rough grading and reducing over-compaction of reclaimed areas.

HJR 218 (Nesler) (S. Floor)

Reauthorizes the Kentucky Aquaculture Task Force.

HB 244 (Meeks)(H. Floor) (+)

Urges state Department of Fish & Wildlife resources to avoid killing elk and other protected and reintroduced animals and to mediate disputes concerning migration of such animals onto private property.

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