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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

The 2011 General Assembly: Bills and Resolutions We're Watching: Seventh Edition  Posted: March 5, 2011
This list profiles the environmental, conservation, consumer and general government bills that the Kentucky Resources Council will be tracking during the 2011 session. With three legislative days remaining, we have removed from the list those bills that have not been heard by the initial committee to which they were assigned, and which are unlikely to become law. Refer to the Sixth Edition to review those measures.

This year is a “short” session and will end on March 22.

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 for anything we’ve gotten wrong!)

KNOW SOMEONE WHO WANTS NOTICE OFWHEN THESE UPDATES ARE POSTED?

Send this to a friend, and tell them to write us at FitzKRC@aol.com if they want to receive notice when these postings are updated.

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 2011 Session page at http://www.lrc.ky.gov/record/11RS/record.htm

To find your legislators email, go to http://www.lrc.ky.gov/whoswho/email.htm

The phone number to reach a legislator in person is 502-564-8100 (this is not toll-free).

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 1-866-840-6574. The toll-free bill status number is 1-866-840-2835.

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 mischievous amendments. Where KRC has taken a position concerning a bill 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 are opposing or supporting appear in the first section, followed by those that we are tracking.

“RECOMMITTED TO A&R”

As the session winds down, the leadership of the House and Senate determine which bills will be sent to the floor for a vote by the full body. In the House, bills that the House leadership does not intend to send to the floor are often “recommitted to House A & R Committee.”

WATCHING THE MULES (and CAMELS)

While technically, the deadline for new bills has passed for both the House and Senate, both chambers have a number of pending bills that make “technical corrections”, change “must” to “shall” or “shall” to “must”, or propose to replace “he” with gender-neutral language. These are known in the vernacular as “mules” (and by some as camels) – and are passed out to the other chamber with the intention of stripping the content, changing the title, and sending back to the originating chamber a wholly different bill, typically late in the session and with little public scrutiny.

We’ve counted almost enough mules to make the primary sponsor of the old TV series Wagon Train (20 Mule-Team Borax) and Ward Bond proud.

Senate Bills:

SB 7(Thayer)(H. Rules)(+)

Would increase government fiscal transparency by making legislative, judicial and executive branch expenditure records, and certain records of higher educational institutions available on the web.

SB 34 (Leeper)(H. Tourism, Dev & Energy)(-)

This bill reprises SB 26 from last session, and would eliminate 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. Bill could also allow siting of low-level radwaste facility in Kentucky inasmuch as a nuclear plant would generate a new wastestream of low-level nuclear wastes that would need to be managed.

Administration officials and the sponsor have 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.

SB 50 (Jensen)(To Governor)(-)

Similar to HB 213 from the 2010 Session, this bill would allow a private transmission pipeline company to condemn private lands in order to construct a pipeline for transmission of carbon dioxide for private use. 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 non-utility 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.

A more detailed analysis of these concerns is available on the KRC website. KRC will be filing suit after the session to test the constitutionality of giving a party the right to condemn another’s land for private use.

SB 70 (Leeper)(To Governor)(+)

Would update the soil contamination screening levels used to determine remediation options for contaminated properties to reflect the more current EPA Region 3 Screening Level Table rather than the Region 9 Preliminary Remediation goals. Comparing the two sets of values, for residential property screening, 313 of the chemicals are within 5% of each other, the Region 3 values are higher for 149 of the contaminants, lower for 73, and 131 new contaminants are added. Thanks to Senator Leeper for sponsoring this bill.

SB 120 (Smith)(to Senate for concurrence)(+/-)

Would allow Energy and Environment Cabinet to develop a program for certification of laboratories. House Floor amendment is intended to expedite consideration of EcoPower Generation’s power supply contract to sell power from a biomass facility in Hazard, in order to obtain direct federal grants in lieu of federal tax credits.

Senate Committee Substitute 1 to HB 385 incorporated a clean version of SB 120 into that bill, which now returns to the House for concurrence. It is unlikely that this bill will progress further since SB 120 will be approved as part of HB 385 when the House votes to concur.

SB 151 (Jones, Turner, Blevins)(to Senate for concurrence)

Original bill would have expanded membership of Public Service Commission and converted their positions from appointed to elected offices. Committee substitute creates a study of PSC governance and low-income ratepayer issues, although study is to be done by 6 legislators rather than broad-based study group, as KRC had recommended. House floor amendment includes in study, whether municipal utilities should be regulated by the PSC. Bill was returned to the Senate on March 2 but has not been posted for concurrence with House changes.

While KRC favors transparency in governance, KRC opposed the original bill because there is no evidence to suggest that states with elected public utility commissions have lower rates than those with appointed commissions, nor that elected utility commissioners are more responsible to the needs of utility ratepayers. Kentucky’s rates are lower than those of every state with elected utility commissioners.

KRC is concerned that the experiences of some of the states that elect Commissioners (Alabama, Arizona, Georgia, Louisiana, Mississippi, Montana, Nebraska, New Mexico, North Dakota, Oklahoma, South Carolina, South Dakota, Virginia) reflects a real potential for the regulated utilities to focus campaign contributions in a manner that would affect the policies and decisions of an elected commission. A 2005 University of California Berkeley study, “Does Private Money Buy Public Policy? Campaign Contributions and Regulatory Outcomes In Telecommunications,” by R.J. de Figueiredo of the Institute for Governmental Studies, reviewed the setting of wholesale telephone rates and found a strong correlation between campaign contributions to utility regulators and regulatory outcomes favoring contributors. Experiences in Oklahoma, Georgia, Louisiana, Alabama and Montana, and the Supreme Court decision in Citizens United v. Federal Election Commission, which opened the floodgates for unlimited corporate spending on election campaigns, raise concerns with making the office of Public Service Commissioner an elective office.

SJR 99 (Smith)(H. NR & Env)(-)

Reflecting the frustration of some coalfield legislators over the EPA “Enhanced Review” of water discharge and fill permits in the Appalachian Region, this resolution would declare Kentucky a “sanctuary state” from EPA’s “overreaching” and would declare that water quality standards for water permits for mines are “not” subject to federal regulation and directs the state to issue permits for those operations to which EPA has objected.

KRC testified in opposition to the bill, noting that the immediate result of the initial language of the resolution would likely have been an EPA veto of the state-issued KPDES permits for failure to address the conductivity values identified in the April 1, 2010 Guidance Document, and possibly federal implementation of one or more water quality standards for Kentucky. Elevated levels of sulfates and carbonates associated with exposure of mine spoil to rainfall is impairing attainment of designated uses for streams draining coal producing areas. The elevated conductivity values reflect this, and under existing Kentucky narrative water quality standards, limits on sulfates should have been imposed long before EPA began the enhanced review.

A Senate Committee Substitute removed the language directing the Division of Water to issue the permits to which EPA has issued a preliminary objection.

SR 116 (Smith)(Passed)(-)

Simple resolution would urge Congress to prohibit EPA from adopting regulations on greenhouse gases and to impose a moratorium on any new EPA air regulations except on a finding of “imminent health or environmental emergency” and to urge Congress to require EPA to conduct a cost-benefits analysis on planned regulations.

The U.S. Supreme Court has explicitly rejected the idea that the health-based ambient air quality standards in the Clean Air Act should be tempered by consideration of “costs.” Implementation strategies may consider the most cost effective manner to meet the standards.

HB 1 (Combs and others)(To Governor)

Would propose a constitutional amendment guaranteeing the right to hunt, fish and “harvest” wildlife and would preclude any city or county ordinances that had the effect of limiting such rights, by recognizing only state laws designed to promote wildlife conservation and to preserve the future of hunting and fishing. Enactment of such an amendment is apparently a national NRA priority.

KRC was very concerned with several unintended consequences of the amendment as drafted, and offered alternative language to address those concerns. A separate posting including that letter is posted on KRC website.

In response to KRC concerns, the Senate State and Local Government Committee made several language changes recommended by KRC that clarify that the powers of the General Assembly to enact statutes is not limited, in respect to hunting and fishing, to “wildlife conservation.” As originally drafted, the bill would eliminate much of the General Assembly’s ability to limit where hunting occurs on public lands, and who may possess firearms for hunting purposes. KRC’s committee testimony regarding the effects of the original language in the bill is on the website.

HB 24(Cherry)(S. State & Local Govt)(+)

Would make legislative, judicial and executive branch expenditure records, and certain records of higher educational institutions available on the web.

HB 26(Belcher)(To House for concurrence)(+)

This bill contains the text of the House-passed version of House Bill 221 from the 2010 session, and provides the framework by with two or more wastewater utilities in the counties of Bullitt, Hardin, Jefferson, Meade, and Oldham counties may elect to create a regional wastewater commission in order to better address the wastewater treatment needs of their residents. It is not a mandate, but an opportunity for regional cooperation in order to more cost-effectively treat wastewater generated by residential, commercial, industrial and institutional sources. It offers community utilities that increasingly face scrutiny from the U.S. Environmental Protection Agency and Kentucky Division of Water for the treatment of wastewaters, including stormwater, a way to benefit from economies of scale in managing wastewaters. The bill as prefiled includes several amendments negotiated by KRC during the 2010 Session and accepted by the bill sponsor, to improve public accountability in the formation and operations of such a regional wastewater authority. Senate changes increase web-based transparency and require legislative body approval of rate increases over 5%.

HB 205 (McKee and others)(H. Rules, recommitted to H. A&R)(-)

Bill would modify the membership of the State Board of Agriculture in order to specify that seven voting members shall be selected from the seven commodity-specific organizations representing the greatest cash receipts, and making the head of the Kentucky Farm Bureau a voting member. As KRC's ally, the Community Farm Alliance, points out, the interests of small-scale family farmers and organic farmers will be under-represented, and agribusiness will be given a much greater ability to self-regulate. The granting of regulatory powers to the commodity organizations undercuts the negotiated framework of House Bill 398, which gave them an advisory role to the State Board.

HB 259 (Yonts)(To Governor)(+)

Would create process for siting up to 5 demonstration projects for geologic sequestration of carbon dioxide in the Commonwealth, and establish process for pooling pore space. Bill directs Energy and Environment Cabinet to seek primary jurisdiction over the geologic storage of carbon dioxide once the programs are developed at the federal level.

KRC had some concerns regarding the original language of the bill, and the Committee Substitute incorporated language to resolve those concerns. KRC thanks Representative Yonts, Sara Smith, Talina Mathews and Todd Littlefield for their assistance in resolving these concerns.

HB 340 (Adkins)(S. A&R)(+)

Would expand types of alternative and renewable energy projects eligible for state tax and financial incentives to include “energy storage”, and “energy efficiency or conservation technology”, which would include upgrading energy management, transmission and distribution, reductions in energy demand and significant increases in energy efficiency. Energy storage would include systems capable of storing electrical energy by which 85% of greater efficiency is attained. Creates new category of component manufacturing facilities eligible for incentives, for new or existing facilities manufacturing systems or products used in renewable energy facilities generating electricity, alternative fuel facilities, gasification facilities and energy efficiency or conservation technology. Requires minimum investment of $25 million to be eligible for incentives. Committee amendment clarifies that credits are available for any systems or products made in Kentucky, and exported out of state.

HB 380 (Combs and others)(H. Rules, recommitted to H.A&R)(-)

Would attempt to “remove from federal jurisdiction” all goods that are produced or manufactured in the Commonwealth if the goods are “retained or remain in Kentucky” and are “stamped”.

The bill is a more subtle and broad version of HB 421, see below, and seeks to insulate coal mined in Kentucky and consumed here from the Clean Water Act, and is just as violative of the federal case law concerning Congress’ power under the Commerce Clause.
Effect of the bill would be to attempt to interfere with federal agency jurisdiction and oversight of clean water, hazardous waste, food safety, mine and workplace safety, surface mining, endangered species, and other consumer, workplace and environmental protection measures for goods manufactured and consumed in the state. See analysis under HB 421.

HB 385 (Gooch and Steele)(To House for concurrence)

KRC originally opposed the bill because of language problems, but a committee substitute clarified that it is the methodology of bond computation that should be incorporated into regulation, not the amount of a bond computed based on site specific factors, such as spoil volume and haulage distance. One portion of the bill clearly violates separation of powers doctrine.

Senate Committee Substitute 1 incorporated SB 120 into the measure.

HB 421 (Gooch)(H. Rules, recommitted to H. A&R)(-)

Purports to declare that the U.S. EPA lacks authority to deny (probably meant to say “veto”) water discharge permits for coal mines where the coal mined does not “travel” in interstate commerce, and to direct the state agency to issue such permits.

KRC testified in opposition to the bill, noting that the direct result of the bill would be a veto of the state-issued permits and direct federal assumption of permitting authority over such vetoed permits. Indirect result may be a partial de-delegation of the state KPDES program.

The U.S. Supreme Court has held consistently and repeatedly that activities that are intrastate in nature are nevertheless subject to regulation under the Commerce Clause where the activity, combined with like activities, affect interstate commerce. The Surface Mining Control and Reclamation Act has been upheld against Commerce Clause challenges, and the attempt to wall off intrastate coal extraction from Clean Water Act obligations will similarly be unsuccessful.

The documented adverse interstate effects of water pollution to all of the river systems draining Kentucky’s coalfields, due to mining activities is more than sufficient to support federal jurisdiction over water permits authorizing discharges of pollutants from mining operations whose products are sold in state.

HJR 90 (Steele and others)(To Senate)

Original Joint Resolution would direct the Kentucky Department of Fish and Wildlife Resources to update the contract with the U.S. Army Corps of Engineers by which the state department manages the “in lieu” fee mitigation program, to eliminate the requirement that "waters for a candidate project not be degraded", and to "include new criteria for stream restoration projects that will improve the biological and chemical characteristics of the water." Intended to direct more monies to elimination of straight pipes, the resolution would effectively end the in lieu fee program since the Corps of Engineers would not accept those contractual changes.

The same resolution calls on the Kentucky Congressional delegation to amend the Clean Water Act to prohibit the EPA and Corps of Engineers from imposing “a discriminatory standard for conductivity” in the Appalachian region. The inclusion of this provision is not mentioned in the title of the resolution, and potentially makes the resolution unconstitutional under Kentucky Constitution Section 51, which provides that no law shall relate to more than one subject and that the subject is to be expressed in the title.

KRC worked with the sponsor to revise the language in order to incorporate septic discharge improvements into in-lieu-fee projects to the extent allowed under the 2008 Compensatory Mitigation Rule.

HCR 126 (Gooch and others)(H. Rules, recommitted to H A&R)(-)

Would urge Congress to pass legislation to prohibit EPA from regulating greenhouse gas emissions. While KRC believes that Congressional action to adopt comprehensive GHG legislation is preferable, in the absence of such action, EPA should be able to move forward.

HCR 127 (Gooch and Steele)(H. Rules, recommitted to H.A&R)(-)

Would express concern about the scope, justification and content of the proposed OSM stream protection rule and recommend that Congress withhold agency funds for enforcement of the rule until the justification is provided.

As part of the development of the rule, OSM will release a draft Environmental Impact Statement which will analyze the direct, indirect and cumulative effects of the proposed rule and of all other alternatives, including no action. The basis for the proposal will be made available to the public.

HCR 128 (Steele)(S. Rules)(-)

Same as HCR 127.

HCR 136 (Combs)(To Senate)(+)

Would establish a timber theft and trespass reduction task force to develop consensus recommendations on reducing timber theft and trespass.

Other Bills We’re Tracking

SB 1 (Williams and Leeper)(H. A&R)

Would establish a council to develop recommendations on revisions to revenue statutes, which would be subject to an up-or-down vote by the General Assembly.

SB 4 (Carpenter)(H. Elections and Const Am)(posted)

Would prohibit lobbyist contributions to candidates for statewide office, change election filing deadlines, and amend contribution filing requirements.

SB 5 (Leeper, Hornback)(H. A&R)

Would require appropriations and revenue bills to be available for public review prior to certain legislative actions thereon.

SB 8 (Givens and Wilson)(To Governor)

Would direct the Secretary of State to develop an electronic “one-stop” portal to facilitate interaction among businesses and governmental agencies in the Commonwealth.

SB 92 (Givens)(H. Rules)

Would clarify who is responsible for promulgating regulations to require posting bonds for stockyards not required to file a bond under federal law.

SB 135 (Westwood)(To Governor)

Would amend existing law concerning local code enforcement under KRS Chapter 65 to allow Code Enforcement Boards to appoint hearing officers, provide training for hearing officers under KRS Chapter 13B, clarify how citations are served, require specific findings of fact, conclusions of law and recommended orders, and lengthen to 30 from 7 days the time for appealing nuisance citations. Many of these changes are considered by the courts to be essential elements of procedural due process in the administrative hearing arena.

House Bills

HB 29 (Henderson)(S. Ag)

Would create a Historic Farms program allowing designation of heritage farms.

HB 33 (Richards)(To Govenror)

Would limit mailing of state publications to parties to mailing on request, and provide that reports to the LRC be filed electronically.

HB 44 (Meeks) (S. State and Local Govt)

Would define who is an "American Indian" under Kentucky law.

HB 47 (Jenkins)(S. Judiciary)

Would allow local governments to collect “amelioration costs” for nuisances and to impose property liens for such costs.

HB 50 (Meeks)(S. State & Local Govt)

Would establish a process for state recognition of American Indian tribes.

HB 56 (Crimm and others)(H. Rules, recommitted to H. A&R)

Would amend current laws concerning cruelty and torture of animals to forfeit ownership of animals involved and to prohibit possession of animals of the same species for two years following conviction.

HB 70 (Crenshaw)(S State & Local Govt)

Would amend Section 145 of the Kentucky Constitution to allow automatic restoration of voting rights to persons who have served their time, except those convicted of treason, intentional killing, sexual conduct with a minor or deviate sexual intercourse; those excluded could still request an executive pardon.

HB 109 (Pullin)(S. Transp)

Would create a passenger rail transportation advisory board.

HB 119 (Rollins)(To Governor)

Would provide for optional adoption by cities of training programs for city officials, including incentives for those being trained.

HB 130 (Hall) (S. State & Local Govt)

Would create a Kentucky Mountain Trail Authority authorized to establish an area for tourism and outdoor recreation opportunities for residents and visitors, to charge fees for access and parking, and to hire rangers for a Kentucky Mountain Regional Recreational Area.

HB 152 (Jenkins and others)(H. Rules, Recommitted to H. A&R)

Would require Energy and Environment Cabinet to develop a prescription drugs drop-off program.

HB 165 (Koenig and Edmonds)(H. Rules, recommitted to H.A&R)

Would create process for optional consolidation of counties.

HB 166 (McKee and Denham)(To Governor)

Would mandate that state parks promote the sale of Kentucky Proud agricultural products.

HB 195 (Koenig and others)(S. Ag)

Would abolish the Kentucky Wood Products Competitiveness Corporation.

HB 242 (Denham & Pullin)(To Governor)

Would require metal recyclers to require proof of ownership or authorization to sell for smelted, burned or melted metals.

HB 247 (Riggs and Floyd)(To Governor)

Would create an advisory committee on radon and a certification program for entities engaged in radon measurement, mitigation and laboratory analysis.

HB 250 (Koenig and Keene)(To House for concurrence)

Would amend and update law regarding licensure of home inspectors and provide authority for Board of Home Inspectors to take disciplinary action against licensees

HB 312 (Damron)(S. State & Local Govt)

Would expand types of sewer agencies granted the power under KRS Chapter 96 to suspend water services for failure to pay sewer charges, to include sewer agencies such as MSD that are not municipally owned or controlled.

HB 329 (Denham)(S. State & Local Govt)

Would confirm Executive Order 2010-436 reorganizing management of energy assistance services for low-income households and of weatherization assistance program by Finance and Administration Cabinet.

HB 330 (Stacy)(To Governor)

Same bill as Senate Bill 80, would amend KRS 278.021 to define circumstances that constitute abandonment of a public utility and create court-supervised receivership process for returning control of the utility or liquidating its assets.

HB 353 (Nelson)(S. Ag)

Would prohibit the Department of Fish and Wildlife and other agencies from releasing species that grow to over 500 pounds, without approval from the county government.

HB 362 (Henderson)(To Governor)

Would amend state law regarding ginseng and require licensing of ginseng dealers.

HB 433 (McKee)(To Governor)

Would amend waste tire statutes to create a five-member Waste Tire Working Group, would create receipt program for tires contracted for out-of-state processing or disposal.

HB 477 (Collins)(H. Rules, recommitted to H.A&R)

Modifies current law requiring the holding of a hearing where a variance is sought from the 1,000 foot spacing requirement for gas wells completed into Devonian shale formations, to allow for a hearing if one is requested within 30 days of service of notice.

House Resolutions

HJR 5 (Clark)(To House for concurrence)

Would direct a study be contracted of the effectiveness of economic development incentive programs.

HCR 13 (Wuchner and DeWeese)(To Governor)

Concurrent resolution would establish a legislative task force on childhood obesity.

HCR 37 (Koenig and others)(To Governor)

Supports federal legislation requiring EPA to consider affordability regarding combined sewer overflow elimination measures.

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