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

KRC Summarizes 2012 Session Bills Of Interest To State Bar  Posted: June 20, 2012

STATE GOVERNMENT BAR ASSOCIATION
LEGISLATIVE UPDATE 2012 SESSION

Kentucky Bar Center
Frankfort, Kentucky
May 29, 2012

Tom FitzGerald, Director
Kentucky Resources Council, Inc.
www.kyrc.org

INTRODUCTION

This outline covers those bills and resolutions that might be of particular interest to attorneys working with state government, and is divided in two sections: first, the bills and resolutions that were enacted are identified and generally described, and then bills and resolutions that were filed and were heard and approved by at least one committee (some of which also passed one chamber). The bills are provided in order, from lowest to highest bill number, first in the House and then the Senate.

For a more detailed description of the environment, energy, and general government bills that were introduced but which did not gain approval by any committee, visit www.kyrc.org and click on “2012 GENERAL ASSEMBLY REGULAR SESSION: Bills We’re Watching: The Eleventh Edition”.

I. MEASURES THAT BECAME LAW

HB 293 (Owens and others)

Amends state election laws to address the situation where a special election (not on a primary or general election date) for a vacancy in either house of the General Assembly and only one candidate has qualified to run for the vacancy, the county clerks can limit voting to one location, either the county clerk's office or another place designated by the county board of elections and approved by the State Board of Elections.

HB 402 (Cherry)

Allows the Executive Branch Ethics Commission to share evidence with the Personnel Board or the Auditor of Public Accounts for investigative purposes, and includes the Executive Branch Ethics Commission as an agency to which an employee can report actual or suspected violations of any law or any information related to actual or suspected mismanagement, waste, fraud, abuse of authority, or danger to public health or safety.

HB 440 (Denham)

Codifies liability rules for agritourism activities and requires warning notices to be posted at places that conduct agritourism activities.

HB 465 (Nesler, Gooch)

Creates a new section of Subchapter 1 of KRS Chapter 224 to establish a Brownfields Redevelopment Program to be administered by the Energy and Environment Cabinet. Among the salient features of the bill:

• Exempts property owners where a release of petroleum, pollutants, or contaminants has occurred from the obligation to perform characterization and corrective action for the release, provided that the person certifies and the Cabinet finds that the release occurred prior to acquisition of the property, that “all appropriate inquiries” were made, that all legal notices have been made regarding the presence of the hazardous substances on the property, that the property owner complies with all land use restrictions and doesn’t impede or compromise any institutional controls, that the property owner is not affiliated with any person potentially liable for the release (both business and familial) and that the person has not caused or contributed to the release;

• Establishes criteria for the protection from liability for property owners and allow the cabinet to promulgate administrative regulations to establish standards and procedures for implementing the Brownfields Redevelopment Program;

• Amends KRS 224.60-135 to provide that property owners are not require to take corrective action where a release from a petroleum storage tank occurred if the property owner is not the tank owner or operator;

• Amends KRS 224.60-138 to provide notice that no further action is needed regarding residual contamination on property where a release has occurred from a petroleum storage tank if the contamination is below standards established by the cabinet under the Brownfields Redevelopment Program.

HB 496 (Bell and others)

Amends Kentucky Open Records Law to exclude from the definition of “public agency” whose records are subject to the Act, those bodies deriving “at least twenty-five percent (25%) of its funds expended by it in the Commonwealth of Kentucky from state or local authority funds” in any fiscal year, where the funds are derived from a state or local authority in compensation for goods or services provided by a contract obtained through a public procurement process.

The bill was presented as a way to protect from “fishing expeditions” the records of private entities that provide goods or services under competitive public procurement process, on the assumption that the procurement process would provide sufficient transparency and accountability in the expenditure of those funds.

HB 500 (Damron and others)

Amends existing law that limits cities and counties from having local firearms ordinances, to expand the units of government and public agencies covered, expand limitations on local action, and provide that parties may sue to enjoin violations.

HB 559 (Adkins and others)

Clarifies that the moratorium on construction of new nuclear fission power plants does not preclude several nuclear-related technologies, including closed loop fuel cycle plants designed to assist in conversion of coal and gas to fuel. Among the activities to which the current moratorium is not to be construed as applying or precluding are:

• Enrichment of depleted uranium hexafluoride tails;

• Processing of metals contaminated with radioactive materials;

• Recycling or reprocessing of spent nuclear fuels; or

• Nuclear-assisted coal or gas conversion processes
provided that electricity is not the primary output of any of these processes.

The current moratorium would not, even in the absence of the bill, have applied to the first three category of activities. The final category is intended to allow Paducah to compete for siting of a high-temperature gas-cooled modular reactor used for conversion of coal to syngas or synthetic fuel. Waste output from the HTG units, which do not generate electricity as a primary output, is 99% less than a conventional plant.

SB 123 (Thayer)

Creates a new section in KRS Chapter 65 to establish that referendum petition requirements include the printed name, signature, year of birth, residential address, and the date the petitioner signed the petition and to require that to be eligible to sign a referendum petition a person must live in the district or jurisdiction that will be effected by the referendum and be a registered voter.

SB 157 (Bowen and Givens)

Revises current law on administrative regulation development by agencies to address electronic formatting, and make other changes to existing procedures, including:

• Changing the definition of "statement of consideration" to mean a summary “of the comments received, its responses to those comments, and the action taken, if any, as a result of those comments and responses” rather than the current requirement for a “concise statement setting forth the reasons for not accepting suggestions or recommendations regarding an administrative regulation”;

• Makes the electronic version of the regulations filed with the Regulations Compiler the official version;

• Prohibits the use of “including but not limited to”;

• Begins the comment period on the date of filing of the regulation with the regulation compiler, effectively increasing all comment periods to forty-five days;

• Doesn’t require sending amended after comments regulations to those who have requested to be on list to receive notice of proposed regulations, unless the person specifically asks for them; and

• Limits the obligation to provide affirmative consideration, to written comments received.

SB 162 (Bowen)

Comprehensive revision of statutes governing registration of geologists, including conferring additional investigative powers on registration board.

SB 178 (McGaha)

Amends KRS 73.020 to prohibit any person from filing for the office of county surveyor unless he or she produces to the county clerk evidence of having a Kentucky license as a professional land surveyor in accordance with KRS 322.020 and 322.045.

II. BILLS AND RESOLUTIONS OF INTEREST THAT DID NOT PASS

HB 70 (Crenshaw and others)(S. Judiciary)

Proposed constitutional amendment to provide for automatic reinstatement of voting rights of felons (other than treason, intentional killing, a sex crime, or bribery) after expiration of probation, parole, or expiration of sentence.

HB 230 (Wayne and others)(H. Rules, recommitted to H. A&R)

Would create a mechanism for public financing of judicial elections, funded with voluntary designations of income taxes and bar dues.

HB 239 (Westrom and others)(S. Judiciary)

Would have created a pilot project in each Supreme Court district to provide discretion to Judges in the limited opening of cases in Family Court, Circuit Court, or District Court relating to abuse, neglect and dependency proceedings, and termination of parental rights proceedings, exclusive of sexual abuse proceedings.

HB 289 (Westrom and Adams)(H. Rules, recommitted to H. A&R)

Would prohibit indoor smoking in businesses, places of employment, and other listed public places.

HB 321 (Marzian) (S. State and Local Govt)

Would allow the Governor, when appointments to boards and commissions are made from submitted lists, to appoint a male or female so as to achieve as much gender equity as possible.

HB 352 (Jenkins and Thompson)(H. Tourism Dev. & Energy)(posted)

Would create a new section of KRS Chapter 148 to define "metal detector" and "public area"; allow use of metal detectors in public areas; require registration of use of metal detector within state park or monument office; amend KRS 148.991 to provide a penalty for violation. House version of SB 105.

HB 450 (Combs, Lee, Bell)(H. State Gov.)

Would declare public policy that the costs of administrative regulations shouldn’t exceed the public benefit, and amend KRS Chapter 13A relating to administrative regulations to clarify the review authority and duties of the Administrative Regulation Review Subcommittee and authorize a nonbinding determination that an administrative regulation is deficient if the administrative regulation appears to be against public policy; amend KRS 13A.240 to change the regulatory impact analysis by deleting questions regarding the costs and benefits to regulated entities; amend KRS 13A.280 to require administrative bodies to file an in-depth costs-benefit analysis with each statement of consideration and authorize a person or entity to submit an alternative costs-benefit analysis to the regulations compiler.

HB 521 (Thompson)(H. Rules, Recommitted to H. A&R)

Would allow agencies to use any form of notification – governmental, commercial, or electronic, to provide notice except for notice relating to legal rights, for which certified or registered mail must be used.

SB 4 (Carpenter)(H. State Gov.)

Would place a moratorium of one year on any new regulations other than emergency regs and those required by 2012 session. Would sunset all regulations within two years unless they are repromulgated within that time (between 1 and 2 years). Would require an “economic impact analysis” and a ”small business and consumer impact analysis” . Would prohibit state regulations from imposing stricter requirements on regulated entities than “those required by the federal mandate” unless specifically authorized by statute.

SB 8 (Hornback) (H. State Govt)

Would automatically sunset any administrative body established by executive order shall expire 180 days after the end of the term of office of the Governor, unless the administrative body has been established in statutes, and would require the Office of the Governor to report to the Legislative Research Commission by July 1, 2013, on all of the existing administrative bodies that are deemed to be necessary for the effective functioning of state government and explain why each is necessary. Would also prohibit the establishment of any new administrative body by executive or administrative order for one year from the effective date of the Act.

SB 10 (Bowen)(H. Elections)

Proposed constitutional amendment that would alter the current balance of power among the branches of government by reversing the LRC v. Brown decision and empowering the General Assembly to authorize interim committees to reject proposed administrative regulations when the General Assembly is not in session.

SB 12 (Hornback)(S. Rules, recommitted to Sen. Eco. Dev.)

Would complete the deregulation of telecommunications service in Kentucky, altering the 2006 legislative decision that basic telephone service would remain regulated by the Public Service Commission. Would exempt electing utilities from prohibitions on discrimination in rates and service, and eliminate the requirement to file and display rates and conditions of service. Would also eliminate obligation to provide service where any other voice service was available. Would also curtail significantly PSC jurisdiction over complaints. Repackaged version of SB 135.

SB 62 (Thayer)(H. State Gov.)(posted)

Would lower percentage of voter signatures needed on petition to dissolve an area planning commission from 25% of voters in last presidential election to 10% of registered voters who voted in most recent election. Senate Committee Substitute Floor amendment filed by sponsor would increase percentage to 15% of registered voters.

Bill was intended to facilitate placing on the ballot a referendum to eliminate the Northern Kentucky Regional Planning Commission.

SB 105 (Seum and Hornback)(H. Tourism Dev. & Energy)

Would allow use of metal detectors in state parks and monuments, with no ability of the land manager to prohibit or restrict their use. Only protection is that they cannot be used in areas restricted as a “primitive trail or ecologically sensitive area.” Individuals who work with civil war site preservation were very concerned that SB 105 would increase the incidences of collectors damaging battlefield sites in search of buckles, bullets, and other metal objects. Others are concerned that archaeological sites from historic and prehistoric times might be damaged, and that allowing metal detectors on public lands will encourage collectors to excavate sites in order to recover metals in a way that violates the Kentucky Antiquities Act of 1962, which prohibits the willful damage or destruction of archaeological sites on lands owned or leased by the state, state agencies, counties, or municipalities, and requires a permit from the University of Kentucky's Department of Anthropology to explore or excavate archaeological sites on these lands.

SB 135 (Hornback, Kerr, Carpenter)(S. Eco Dev.)

Would complete the deregulation of telecommunications service in Kentucky. Would exempt electing utilities from prohibitions on discrimination in rates and service, and eliminate the requirement to file and display rates and conditions of service. Would also eliminate obligation to provide service where any other voice service was available, and would eliminate any obligation to serve after June, 2013. Would also curtail significantly PSC jurisdiction over complaints.

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