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

“THE GOOD, THE BAD AND THE UGLY” : REGULAR SESSION WRAP-UP  Posted: March 23, 2005

Kentucky Resources Council, Inc.
Post Office Box 1070
Frankfort, Kentucky 40602
(502) 875-2428 phone
(502) 875-2845 fax
e-mail FitzKRC@aol.com

“THE GOOD, THE BAD AND THE UGLY”
2005 REGULAR SESSION WRAP-UP

Shortly before midnight on March 21, 2005, the 2005 regular session of the Kentucky General Assembly ended. The final update on legislative action affecting the environment is provided below. For a copy of any bill or resolution mentioned, and other legislative information visit the Legislature's Homepage at http://www.lrc.state.ky.us

For many recent sessions, the “successes” of the environmental and conservation community have been measured in terms of problems avoided rather than positive efforts to advance environmental health and quality. This session, with the primary focus on tax “reform” and passage of a budget for the executive branch, was no exception. What follows are summaries of the significant bills tracked by KRC.

Bill To Expand Extended Weight Coal Haul Road System Defeated

HB 8, which would have Expanded the existing “extended weight coal haul road system” to include all forms of mineral, oil and gas, was defeated by the House on a vote of 50-33. The extended weight system allows trucks to haul coal in excess of the maximum gross weight limits for state road systems for payment of a decal fee.

The haulage of coal and non-coal minerals, and use of coal, non-coal and oil/gas related heavy equipment and trucks on state and county roads in this state present significant public health, safety and quality of life concerns. The damage caused by hauling overweight through local neighborhood and residential community roads that were never designed to carry such industrial traffic, and interference with the quality of life of residents of regions where mineral extraction occurs, deserves legislative attention. The current extended weight system imposes a human toll in additional deaths and injuries when accidents occur, and a fiscal toll on the state Road Fund. Expansion of the existing problem of coal hauling overweight to include other forms of minerals, compounds rather than resolves the underlying problem, which is the failure of the coal industry to manage the movement of coal from mine to market in a manner that pays haulers a fair living wage, protects the motoring public and respects the capacities of the rural road systems.

The House initially passed the bill by a vote of 55-32. The Senate amended the bill to include a Senate Committee substitute which exempted Lexington and Louisville (in a manner that would not survive constitutional challenge) and which, for the first time, authorized much heavier truck loads on city and county streets. After the Senate Transportation Committee approved the substitute 9-3, the full Senate approved the amended bill 23-12 and returned it to the House, which rejected the bill 50-33.

Special thanks to those in the House Republican Caucus and the Mountain Caucus who voted against the bill, and to Representatives Wilkey, Marzian, Stein and Ancil Smith. Thanks also to the Senators who opposed the bill in committee and to Senator Brett Guthrie for his effort, though unsuccessful, to make an irresponsible bill less so.

Mandatory Zoning Appeal Bond Rejected

House leadership rebuffed an intensive lobbying effort and refused to bring House Bill 50 up for a floor vote, after the Senate amended that bill to require mandatory posting of a $10,000 appeal bond in zoning cases where the person is challenging a development proposal or land use change before the Court of Appeals. The amended bill would have imposed a mandatory appeal bond on any person seeking appellate court review of a zoning or planning approval if a person did not prevail in a circuit court appeal of a land use approval. Before that person could appeal to the Court of Appeals, the circuit court would be mandated, upon motion, to impose a $10,000 minimum appeal bond, which could be increased to $100,000 depending on the appellees’ proof of the costs, including delay, that the appeal could impose.

The chilling effect on meritorious appeals is apparent, since the bill created a financial bar to seeking appellate review regardless of the strength of the appeal, and that would dissuade parties from seeking review or meritorious claims. The bill was a punitive and arbitrary measure, singling out of this class of appeals for mandatory imposition of appeals bonds on the presupposition that appellants seeking review of a trial court decision upholding the proposed rezoning are presumptively or more likely to be frivolous and that there is a need to constrain the right to seek review for all such appellants, regardless of the strength of or merits of the appeal. KRC rejects this premise.

The House Judiciary Committee refused to entertain the original bill, SB 157, which imposed a minimum $25,000 bond.

Benchmarks Added To 404 Program Bill

SB 175 provides authorization to the Environment and Public Protection Cabinet to issue permits under Section 404 of the Clean Water Act, which regulates placement of dredged or fill material in rivers, streams, lakes and wetlands. House amendment contains language drafted by KRC that requires report to legislative committees concerning statutory, regulatory and budgetary changes needed to support state adoption of the program.

As initially drafted, the bill was opposed by KRC since state assumption of the program, would eliminate the requirement for an environmental impact statement or environmental assessment, and would also eliminate the “public interest review” regulations under which the Corps can deny permits if on balance the public interest is not protected. Additionally, given budgetary constraints, the loss of many technical staff, and the inability of the agency to fully meet its current water quality mandates, KRC is concerned that assumption of a new regulatory program is not in the best interest of existing programs or of the state’s waterways.

House leadership agreed to language drafted by KRC to create benchmarks for determining whether the state management of that program will improve environmental protection, and the costs of state assumption of the program. Under the amended bill, the Cabinet is obligated to report to the legislature by January 1, 2006 on the costs and any statutory or regulation changes needed to support state assumption of the program, and the anticipated benefits in permit streamlining and environmental quality expected in a state-managed program.

Special thanks for Representatives Meeks, Riner and Adkins for their assistance in adding the floor amendment to the bill, and to Senators Scorsone, Leeper and Boswell for their advocacy of the amendatory language.

Effort To Eliminate Jefferson County Air Toxics Program Rebuffed

SB 213, a bill sponsored by Senator Seum to eliminate the Louisville Metro Air Pollution Control Board and to prevent air pollution regulations adopted by any successor agency of Metro Louisville government be no more stringent than federal standards, was not heard in committee.

Bill Standardizing Environmental Covenant Creation Passes

HB 472, a bill which standardizes the form, process and effect of restrictive covenants when used as part of remediation of contaminated properties, was enacted after inclusion of several amendments at the request of KRC. While there remain additional clarifications needed in this bill, the sponsor has agreed to revisit those issues in the 2006 session, and the bill is a first step towards codifying standards for what must be included in a restrictive covenants and how those covenants may be changed or eliminated, and in creating a registry of properties for which such covenants have been used.

Right To Environmental Records Protected

With the agreement of the sponsor of the bill, an amendment drafted by KRC was added to HB 59 to assure that a new exemption from disclosure of public utility records based on vulnerability to terrorist acts, does not affect access by the public to information necessary to determine utility compliance with air, waste and water pollution control obligations. KRC appreciates Rep. Weaver’s and Rep. Wayne’s assistance.

Child School Nutrition Bill Passed

After four years of effort by sponsors and advocates, SB 172 was enacted. Under the bill, soft drinks will be banned in elementary schools; schools will be required to offer moderate to vigorous physical activity daily; school cafeterias may not contract with retail (fast food) outlets more than once/week; annual report cards to parents on school nutrition & physical activity environment will be required; the state Board of Ed. will promulgate regulations on competitive foods & beverages at all levels and certification of school foodservice directors will be provided. The final bill included components of both Rep. Tom Burch and Rep. Tim Feeley's bill, HB 56, and SB 172, sponsored by Senators Alice Kerr & Ernesto Scorsone.

Other Actions

SB 1, a proposed constitutional amendment to allow the General Assembly to impose artificial caps on noneconomic and punitive damages in medical malpractice cases, was rejected by the Senate in a close vote. Kentucky's Constitution protects against legislative limitation of rights of action available to persons injured through the tortuous conduct of another. As has been the case in past sessions, KRC opposes any constitutional amendment that would seek to artificially limit for any class of injuries and for the benefit of one class of persons who have by definition inflicted harm on others, the right of any person to bring a civil action and to seek a jury trial for compensatory, punitive and exemplary damages for injuries sustained.

HB 225, which creates a Kentucky Gas Transmission Authority with the Finance Cabinet, in order to issue revenue bonds to fund construction, improvement or repair of gas transmission pipelines where no transmission lines exist or where existing lines have insufficient capacity, was amended to address KRC’s concerns. As initially drafted the bill raised a number of questions. The sponsor agreed to a series of committee amendments to clarify that the authority will assist in financing repairs or construction of pipelines in constrained or underserved areas but will not own or construct lines. Thanks to Rep. Tanya Pullin for her willingness to work through these changes.

Opportunities Missed

Unfortunately, a number of meritorious bills did not receive a hearing or were not passed, among them being SB 216 (blood lead testing for children entering school and of infants), HB 205, (protections for renters in mobile and manufactured home communities regarding evictions and utility surcharges); HB 207 (extending state civil rights law protections against discrimination in employment and housing based on gender identity and sexual orientation), HB 479 (blood lead testing as part of early childhood screening; agency inspections and mandated remediation of lead paint and soil hazards by owner where occupant shows high blood lead levels), and HB 509 (requiring mining operations to minimize placement of excess overburden in stream channels).

For additional information on other bills considered during the 2005 session, visit us at www.kyrc.org and review earlier legislative updates, or visit the LRC website.


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