2011 General Assembly Regular Session: Bills We're Watching: The Final Edition Posted: March 10, 2011
This list profiles the environmental, conservation, consumer and general government bills that the Kentucky Resources Council supported, opposed and tracked during the 2011 session.
The constitutional amendment creating annual sessions limits the “short” session to 30 legislative days. While the legislative calendar typically reserves two days as “veto days” in which the chambers, after a recess, return to consider any Gubernatorial vetoes, House and Senate leadership moved one of those veto days to March 8, in an unsuccessful effort to provide an additional day for resolution of the impasse over how to cover the Medicaid shortfall.
On Tuesday, the House adjourned until March 21. The Senate went into session March 9, thus ending the 2011 General Assembly Regular Session, and preventing the House or Senate from returning to consider any vetoes. The Governor has issued an unusually pointed call for a special session of the General Assembly to begin on March 14, to address the Medicaid shortfall and to consider his proposal to raise the school dropout age.
There were 487 House Bills, 168 Senate Bills, 229 House Resolutions and 257 Senate Resolutions, including simple, joint and concurrent resolutions. Of these, 98 bills and 7 resolutions were adopted and sent to the Governor, with one bill, HB 1, sent to the Secretary of State to be placed on the ballot as a proposed constitutional amendment.
This is the last edition of our tracking sheet, and will be followed by a session wrap-up next week.
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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.
SB 7(Thayer)(To Governor)(+)
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)(Died in H. Tourism, Dev & Energy Committee)(-)
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.
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)(Was not taken up by 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)(Was not taken up by 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)(Died in H. NR & Env Committee)(-)
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 26(Belcher)(To Governor)(+)
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 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)(Died in 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 385 (Gooch and Steele)(To Governor)
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.
HJR 90 (Steele and others)(Died in 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.
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 128 (Steele)(Died in S. Rules Committee)(-)
Would express concern with proposed stream protection rule and call on Congress to block funding to Office of Surface Mining until scientific evidence justifying rule is provided.
HCR 136 (Combs)(Died in 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 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)(Died in H. Rules Committee)
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.
HB 33 (Richards)(To Governor)
Would limit mailing of state publications to parties to mailing on request, and provide that reports to the LRC be filed electronically.
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 166 (McKee and Denham)(To Governor)
Would mandate that state parks promote the sale of Kentucky Proud agricultural products.
HB 242 (Denham & Pullin)(Became law)
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 Governor)
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 330 (Stacy)(Became law)
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 362 (Henderson)(Became law)
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.
HJR 5 (Clark)(To Governor)
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.