2010 GENERAL ASSEMBLY REGULAR SESSION: Bills We’re Watching: The Final Edition Posted: April 16, 2010
This list profiles the environmental, conservation, consumer and general government bills that were tracked by the Council during the 2009 session. This is the final update, covering the 2010 legislative session, which began on January 5 and ended April 15.
Where KRC took a position concerning a bill or resolution it is indicated with a plus (+) or minus (-). The primary sponsor and current status of the bill are also noted by Committee or chamber.
We’ve changed the format, so that bills we opposed or supported appear in the first section, followed by those that we are tracking.
A final report of the “the Good, the Bad, and the Ugly” will be posted at the end of next week.
Bills of Interest or Concern
SB 26 (Leeper)(Died in H. A&R) (-)
Would have eliminated current prohibition on construction of new nuclear plants in the Commonwealth and allow the PSC to approve new nuclear plant construction with only an approved federal plan for storage of nuclear waste.
Administration officials and the sponsor indicated that lifting the 25-year moratorium is necessary to “begin the conversation” about the role of nuclear energy in Kentucky’s energy future. KRC respectfully disagrees, and believes that allowing a new generation of nuclear power plants to be constructed without a permanent waste disposal strategy in place for wastes that include radionuclides with a half-life of 24,000 years, sends the wrong message to an industry that has seen no new plant construction since 1974, despite significant subsidies from the federal government.
The bill passed the Senate on a vote of 27-10, and was sent to House A&R due to a lack of support in the House for the bill.
The Senate Judiciary Committee attached SB 26 as a committee substitute to House Bill 213, which unlawfully grants a private pipeline company eminent domain powers for a private use of the condemned property. The bill returned to the House and was not taken up on concurrence.
SB 56 (Leeper) (H. Rules, recommitted to H.A&R)(+)
EEC Bill would have updated the screening standards for remediation of contaminated properties to include the more recent Region 3 Regional Screening Level Table. KRC worked with the cabinet and industry on some technical language that allows adoption by the cabinet of future updates of the federal standards. House leadership recommitted the bill to the House A&R Committee, and brought the bill out on the 59th legislative day, filing a floor amendment that converted the bill into a House-proposed one-year continuation budget. The House did not take up the measure.
SB 105 (Givens, McGaha and Pendleton)(Died In Conference Committee)
The top legislative priority for the Kentucky Farm Bureau, the original bill attempted to preempt local ordinances that define some industrial livestock production practices as animal cruelty, by creating a Kentucky Livestock Care Standards Commission to set standards governing the care and well-being of livestock and poultry towards the end of “safe, efficient and scientifically sound livestock and poultry production.” The problem was that nothing in the original bill required anyone to abide by the standards that would be set by the commission.
KRC worked with members of the House Agriculture and Small Business Committee to make the commission advisory to the state Board of Agriculture, and to protect the ability of communities to control and abate nuisances arising from concentrated animal feedlot operations. The sponsor specifically disclaimed any intent to affect CAFO siting ordinances. While the Farm Bureau may think that they’ve crafted a bill assuring that the standards adopted by the Board of Agriculture would not be enforceable (since those standards are specifically exempted from the penalty provisions of the statute) in fact counties and cities could adopt the state animal care standards promulgated by the Board of Agriculture by ordinance and provide civil and criminal enforcement of same within their jurisdiction.
KRC appreciates the work that Representative Tom McKee and Don Pasley put in on the House Committee Substitute. KRC had recommended that a certified organic farmer be added to the commission, and Representative Tom Riner introduced a floor amendment to accomplish that, but it is likely that the amendment will be withdrawn in conference committee due to lack of Senate support.
The Senate passed and returned to the House a modified version of HB 398, which included the amended language of SB 105 as it passed the House. The House concurred with the Senate change and the bill has become law.
SB 133 (Harris)(withdrawn)(-)
Billboard industry bill that would create a program of permitting billboard companies to remove public trees and other vegetation in public rights of way along highways in order to assure that the billboards can be seen by the motoring public. As KRC has done over the past decade, it will continue to oppose the bill.
The Senate Transportation Committee included a “pilot” version of the bill in a committee amendment to House Bill 536, but Senate leadership has apparently killed that bill because of the potential loss of $42 million per year in federal road funds.
SR 160 (Smith)(introduced but never acted on)
Simple resolution would encourage Congress to provide a fair and effective approach to addressing climate and energy supply issues that safeguards American jobs, ensures affordable energy and maintain’s America’s global competitiveness. Asks that Congress act to postpone EPA’s adoption of standards for greenhouses gases until Congress takes action. Differs from the House-passed HCR 132 in that the Senate resolution calls on Congress to act.
As KRC testified in the House Natural Resources and Environment Committee hearing on HCR 132, KRC believes that Congressional action is preferable to the ill-fit of using the Prevention of Significant Deterioration program to attempt to regulate greenhouse gases from stationary sources, but KRC opposes legislation that would foreclose EPA action in the absence of timely Congressional action.
SJR 177 (Givens)(Became Law)(+)
Directs the state Apiarist to work with the Transportation Cabinet and local beekeeping clubs to identify state owned rights-of-way that could be made into pollinator habitat sites for bees.
HB 124 (Yonts)(Became Law)(+)
Extends the registration of tanks eligible for remediation under the Petroleum Storage Tank program until 2015 and allow reimbursement for remediation expenses up until 2018.
HB 173 (Hall)(Died In Senate Rules)
Senate Committee Substitute to HB 173 establishes a task force to study the benefits and challenges of establishing an eastern Kentucky trail system.
HB 175 (Steele)(Became Law)(+)
Bill seeks to encourage post mining development of pollinator habitats and would request the interim Natural Resources Committee to explore ways to support beekeeping on mine reclamation sites. Bill was criticized as encouraging mining, when in reality it merely encourages reclamation that is of benefit to pollinating species on minesites that will be mined in any event. KRC testified in support of the bill.
HB 185 (Wayne)(Died In S. Rules)(+)
Would have required posting by public employers of whistleblower statutes and restrict reprisal against employees who refuse to participate in employer practices that may violate a law or regulation.
HB 213 (Adkins)(Died In House on Concurrence Calendar)(-)
Bill sought by Denbury Resources would have allowed a private transmission pipeline company to condemn private lands in order to construct a pipeline for transmission of carbon dioxide. KRC has spoken with the company's attorneys about constitutional concerns and has suggested that the company either submit to regulation as a "common carrier" or that it seek to use state highway rights of way. KRC believes that irrespective of a legislative declaration that transmission of CO2 by pipeline is a "public use," the reality remains that it is unconstitutional under Sections 13 and 242 of the Kentucky Constitution to grant a private company the power to condemn the lands of another private party where the public will not be able to use the easement that is condemned.
KRC testified in opposition to the bill in committee on February 11. That testimony can be seen on the KET website.
Senate Committee Substitute attached provisions of SB 26, lifting the quarter-century moratorium on construction of nuclear power plants. That change made it unlikely that the bill would be taken up by the House for concurrence, and it was not.
HB 240 (Adkins) (Became Law) (++)
Repealed and reenacted House Bill 2 from the 2008 Session, to address constitutional concerns raised by the enrolling of the bill after midnight of the last legislative day of that session.
HB 290 (Rand) (Died in Free Conference)
The Governor's proposed FY 2010-2012 Executive Branch budget.
Administration's budget assumes over $800 million dollars in revenue from expanded gambling - a measure with little chance of success given Senate leadership opposition.
It is unfortunate that the Beshear Administration does not view environmental protection programs as among the core priorities to be shielded from severe budget cuts. The budget for air, waste, water, coal and noncoal regulation, forestry, and other programs have been cut by a cumulative amount of over 25% - far below the point at which the programs are being fully implemented, despite the yeoman efforts of underpaid and overworked staff in the various program areas. As a result, staff are intermittently prohibited from working on state-lead programs where there is no matching federal funding, and actions are taken to reduce workload, such as issuance of general permits for wastewater discharges where individual permits would provide better protection.
The Governor's budget, even with the unrealistic assumptions concerning gambling revenue and savings from efficiency improvements in government, still cuts the environmental protection budget for the biennium further, reducing general fund support, and proposing an overall budget dropping from $290.1 million in 2010-11 to $259.2 million in the out-year. A review of the historical funding over recent years reflects that, for the most part, the budget of the various programs are frozen at the level of funding for the current fiscal year, after taking the most recent cut.
If there were ever a time to end the taxpayer subsidy of pollution by requiring that agency permit fees cover the full cost of permitting, inspection and compliance, that time is now. Those who purchase the products and services should pay the costs of the licensing and permitting as part of that product or service; the public should not be required to underwrite pollution by paying the lion's share of the cost of permitting facilities that use the public's air, land and water to dilute and discharge of their wastes.
HB 378 (McKee)(Became Law)
Amends the petroleum storage tank fund statutes to prohibit the fund from limiting the number of tanks that a particular entity could register for remediation under the SOTRA fund.
HB 419 (Died In S. Rules)(+)
Would have established a Kentucky Land Stewardship and Conservation Fund and allows funds to be allocated to nonprofit land conservation organizations. A Senate Floor Amendment addresses concerns raised in committee that tax receipts not be used to purchase agricultural easements.
HB 536 (Bell and others)(Died in S. Rules)(-)
Would have exempted from permitting billboards that do not display a commercial message and which meet the dimension, and illumination standards established by statute. Intended to allow religious billboards along I-65 that were erected without a permit and in violation of setback requirements, the bill will, if passed, likely cause a loss of millions of dollars of federal aid highway money.
The billboards in question are, within the meaning of the Highway Beautification Act, "signs, displays, or devices" that are prohibited from being erected along the Interstate or primary road system outside of urban areas. The statute in question is 23 U.S.C. 131, which requires that states maintain "effective control" over the erection of such signage. The penalty for a state failing to do so is the withholding of 10% of federal aid highway funds.
23 U.S.C. 131 defines "effective control" in this manner:
“(c) Effective control means that such signs, displays, or devices after January 1, 1968, if located within six hundred and sixty feet of the right-of-way and, on or after July 1, 1975, or after the expiration of the next regular session of the State legislature, whichever is later, if located beyond six hundred and sixty feet of the right-of-way, located outside of urban areas, visible from the main traveled way of the system, and erected with the purpose of their message being read from such main traveled way, shall, pursuant to this section, be limited to (1) directional and official signs and notices, which signs and notices shall include, but not be limited to, signs and notices pertaining to natural wonders, scenic and historical attractions, which are required or authorized by law, which shall conform to national standards hereby authorized to be promulgated by the Secretary hereunder, which standards shall contain provisions concerning lighting, size, number, and spacing of signs, and such other requirements as may be appropriate to implement this section, (2) signs, displays, and devices advertising the sale or lease of property upon which they are located, (3) signs, displays, and devices including those which may be changed at reasonable intervals by electronic process or by remote control, advertising activities conducted on the property on which they are located, (4) signs lawfully in existence on October 22, 1965, determined by the State, subject to the approval of the Secretary, to be landmark signs, including signs on farm structures or natural surfaces, of historic or artistic significance the preservation of which would be consistent with the purposes of this section, and (5) signs, displays, and devices advertising the distribution by nonprofit organizations of free coffee to individuals traveling on the Interstate System or the primary system. For the purposes of this subsection, the term "free coffee" shall include coffee for which a donation may be made, but is not required.”
If HB 536 were enacted, it would appear that the Commonwealth would have lost "effective control" and would be subject to the withholding by the Federal Highway Administration of federal-aid highway funds under 23 U.S.C. 131(b). According to a March 2009 FHWA Notice, that amount was approximately $528 million dollars for FY 2009.
After the Senate Transportation Committee amended the bill last week to include a “pilot” program of cutting trees in public rights of way to assure billboard visibility, Senate leadership apparently determined that the risk of losing federal road funds was too great, and decided not to bring the bill to a floor vote in the Senate.
HR 24 (M. Marzian, J. DeCesare)(Adopted) (+)
Endorses the creation of a General Assembly Green Schools Caucus in support of efforts to build more energy-efficient, water-efficient, and environmentally sustainable K-12 schools.
HCR 84 (Thompson and others)(Died In S. Rules)(-)
Would have created a “Kentucky Natural Resources Caucus within the General Assembly to support the coal, oil and natural gas industries.
In the interest of accuracy, the caucus should instead be called the “Fossil Fuel Caucus”, since it ignores the above-ground natural resources of the Commonwealth, which are often damaged or degraded because of coal extraction, and oil and natural gas production.
HR 132 (Gooch and others)(Adopted)(-)
Encourages Congress to block EPA from developing greenhouse gas emission standards governing stationary sources.
While KRC believes that the better approach to greenhouse gas regulation is through Congressional action, in the absence of such action the EPA is obligated, having made an endangerment finding, to develop regulations to address stationary as well as mobile sources of greenhouse gases.
KRC testified in opposition to the resolution in committee on February 11, and suggested that rather than simply opposing the EPA utilization of the Prevention of Significant Deterioration (PSD) program to regulate carbon dioxide from stationary sources (i.e. utilities and other major CO2 emitters), that the General Assembly should affirmatively ask Congress to act on a climate change bill. The Chair responded by reiterating that he did not believe that CO2 was causing climate change to occur. Ironically, not 15 minutes before the discussion, the Committee had unanimously voted to approve a bill allowing a private CO2 pipeline company to condemn other people’s lands on the assumption that capturing CO2 was a “public use” because of the threat of climate change.
HJR 141 (Hall & Edmonds)(Became Law)
Resolution would direct the Legislative Research Commission to open a case on retail competition in natural gas supply, and directs the study of particular aspects of the issue.
While KRC supports a revisiting of the issue of retail competition in natural gas supply, the initial resolution was drafted in a manner that presupposes the outcome of the study, and expresses legislative support for increasing retail competition. A committee substitute provides a more neutral mandate to the PSC to conduct the study, and to look at the performance of similar programs in other states.
AS KRC testified in committee, particular caution is warranted when evaluating the merits and demerits of allowing gas marketers access to retail customers now served by the incumbent gas utility. The existing Columbia Gas retail competition pilot has cost those who have participated, over the past eight years, $4.45 million dollars in increased gas commodity costs over what they would have paid had they chosen to remain with Columbia Gas purchasing and delivering natural gas to them!
HJR 192 (Nelson)(Became Law)
Replaces House Bills 312 and 173, and encourages Kentucky Department of Fish and Wildlife Resources and Kentucky State Nature Preserves Commission to negotiate a memorandum of agreement with Harlan County Fiscal Court to allow equine access to a ridge trail bordering the Shillelah Wildlife Management Area and Martin’s Fork State Natural Area. Language has been substantially modified from House Bills 312 and 173 to provide General Assembly recognition that this is a unique situation and does not set a precedent for opening other state natural areas and nature preserves to equine access, nor requiring more horse trail opportunities on wildlife management areas.
Senate Bills and Resolutions We’re Tracking
SB 64 (Tapp, Pendleton and Tori)(Became Law)
Comprehensive revision of statutes governing Department of Fish and Wildlife Resources, would subject appointment of Commissioners to Senate confirmation. House Committee Substitute incorporates amendment drafted and sought by KRC that would assure that the state agency managing lands (such as parks and nature preserves), rather than the Fish and Wildlife Commission, would decide whether to open managed lands to hunting.
SB 104 (Givens)(Became Law)
Updates various statutes to align reporting by agencies to the changes in interim legislative committee assignment of agricultural issues that created an Interim Joint Committee on Agriculture.
SB 132 (Stine)(Became Law)(+)
Establishes standards for efficient design of schools.
SR 70 (Rhoads)(Adopted)
A resolution adjourning the Senate in loving honor and memory of Sue Anne Salmon.
SJR 169 (Williams and others)(Became Law)
Ratifies the bi-state Ohio River Bridges Authority.
House Bills and Resolutions We’re Tracking
HB 14 (Siler)(Became Law)
Allows up to three free nights stay annually for permanently and totally disabled veterans at Kentucky State Parks.
HB 24 (Richards)(Became Law)
Permits an applicant approved for a limited supplemental guide sign to amortize the permit cost over 10 years.
HB 28 (Coursey) (Became Law)
Creates a Water Transportation Advisory Board to advise the legislative and executive branches concerning industrial water transportation and riverports, and a trust fund for improvement of riverport facilities and infrastructure.
HB 44 (Damron) (Became Law)
Authorizes the Department of Public Health to create standards for mold remediation and allow prosecution for providers of mold remediation services that fail to comply with those standards.
HB 98 (Miller)(Became Law)
Requires inspection of installations of new manufactured homes.
HB 114 (Combs)(Became Law)
Renames Pine Mountain Trail State Park to Pine Mountain State Scenic Trail.
HB 158 (Rollins)(To House for Concurrence)
Would create training program for city officers and encourage the adoption of such programs by cities; would create a retirement incentive to encourage training of city officers. Senate amendment included revisions to state law concerning wineries.
HB 201 (Ballard)(Became Law)
Revision to statutes governing water district commissioners, allowing PSC to fill vacancies on water district commissions, and creating training program for new commissioners.
HB 215 (Gooch)(Became Law)
Amends KRS 146.415 to correct a technical error in the definition of “nature preserves”. Senate Amendment included a voluntary option to have coal mining violation notices served electronically rather than by certified mail.
HB 268 (Gooch)(Became Law)
Increases the number of annual training hours for a renewal of a Kentucky blaster's license and allow that no more than 4 of those hours in any year be attributed to attending a conference. A Senate Committee Substitute folded into the bill an increase in the limits available for subsidence insurance.
HB 283 (Gooch) (Became Law)(+ / -)
Raises permitting fees for new, amended, and revised surface coal mining operation permits. The bill is intended to codify fee increases unlawfully adopted in an "emergency regulation" last year that raised permit fees in order to fund permit review positions within the Department for Natural Resources.
While KRC supports the increase in fees in order to capture from the permit applicants a higher percentage of the actual costs of permitting and inspecting the mine operations, it appears that the fee increases fall short of capturing 100% of those costs, leaving taxpayers to subsidize mining companies by paying a portion of the costs of the implementation of the surface mining regulatory program.
The bill also limits the expenditure of any monies raised by permit fees to the Division of Mine Permits, thus making the remainder of the mining program (including inspection and enforcement) entirely dependent on general fund appropriations.
HB 291 (Rand) (Died In S. Rules)
The Transportation Cabinet appropriations bill for the 2010-2012 biennium.
HB 292 (Rand) (Died In House on Concurrence)
The biennial highway construction project bill.
HB 293 (Rand) (Became Law)
The 2010-2012 Judicial Branch Budget.
HB 393 (Pullin, Yonts)(Became Law)
Confirms reorganization of Energy and Environment Cabinet.
HB 420 (Couch)(Became Law)(+)
Designates the Hurricane Creek underground mine site as a state historic site and provide for development of a memorial to the 38 miners who died in the mine explosion on December 20, 1970.
HB 454 (Rand) (To Governor)
Allows utilities to place priority liens on retail business properties where the property is $50,000 or more in arrears for utility service.
HB 486 (McKee)(Became Law)
Amends the existing definition of an agricultural operation in the right-to-farm law to specifically recognize the practice of sustainable agriculture.
The right-to-farm law, which seeks to constrain private or public nuisance actions by limiting the right to bring action to one year after commencement of the agricultural or silvicultural operation, is likely unconstitutional in light both of that statute of repose, and because it requires negligence to be proven in the context of a nuisance action, which conflicts with existing case law that has been codified into Kentucky statutes and with the jural rights protections of the Kentucky constitution.
A Senate amendment provides that any agency adopting regulations defining sustainable agriculture shall be consistent with the definition and allow use of agricultural water quality best management practices established by the agricultural water quality commission.
HB 504 (Sinnette and others)(Became Law)
Requires the state Division of Water to consider affordability, flexibility in implementation, and other factors, to the extent allowed under federal law, in issuing stormwater discharge permits.
HB 511 (Stumbo and others)(Became Law)
Legislative branch budget for next biennium.
HB 530 (Rand)(Died In Conference Committee)
This is the revenue bill, which temporary suspends business tax credits in order to help balance the budget for the next biennium. Bill also removes the sunset language on the waste tire fund, allowing the fund to continue beyond the July 2010 sunset date. Unfortunately, Senate version caps overhead to 10%, which would prevent Cabinet from using funds needed to hire solid waste inspectors from the fund receipts.
HB 552 (Owens)(Became Law)
Makes eligible for HB 1 tax incentives, an “energy-efficient alternative fuel facility” which is defined to include a fuel that is used to generate electricity and either uses coal with an energy content 20% great than feedstock coal, utilizes waste coal as the primary feedstock, or uses 20% of greater biomass resources. Bill was sought for White Energy, which is considering locating in Metro Louisville.
HB 589 (Adkins)(Became Law)
Adds liquefied fuel made from natural gas or liquefied petroleum made from natural gas to the category of “alternative transportation fuels” eligible for incentives under HB 1. Senate limited number of eligible projects to 5.
HJR 69 (Rand)(S. A&R)
Would give force of law to the Executive Branch Budget Memorandum that accompanies the final budget bill.
HJR 70 (Rand)(To House for Concurrence)
Would give force and effect of law to the Transportation Cabinet budget memorandum, and includes the authorization for those projects comprising the last four years of the 6-year road plan.
HJR 71 (Rand)(S. A&R)
Would give force and effect of law to the Judicial Branch budget memorandum.
HR 91 (Ballard)(Adopted)
Requests Transportation Cabinet to study the potential cost savings from reducing the amount of lighting used at remote parkway interchanges.
HR 136 (Nelson and Stewart)(Adopted)
Encourages the Public Service Commission to deny any utility request for rate increases that exceed the CPI for the previous year.
HJR 197 (Stumbo)(S. A&R)
Would give force and effect of law to directives in the budget memo for legislative branch.
HR 211 (Gooch and others)(Adopted)
Simple resolution requesting that EPA consider increased emissions in relation to increased electricity generation when determining whether to apply New Source Review to modifications made in existing power plants.