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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

Alert: Jan 12  Posted: January 28, 2001
2001 REGULAR SESSION: Bills We're Watching

This list profiles the significant environmental, conservation or consumer bills that are being tracked by the Council during the 2001 session, as well as some general government bills of interest. It will be updated at least weekly, and will be supplemented with more detailed analysis on key bills.

MAKE NO MISTAKE ABOUT IT – KRC IS LOBBYING, WITHIN LIMITS

If you received the Sierra Club’s January 2001 Cumberland, you might be confused by the lead article, which states that the Kentucky Resources Council, Inc. does not lobby.

In fact, we do lobby, and have lobbied the legislature on behalf of KRC members and the environment during each regular and special legislation on environmental issues since 1984. Tax-exempt organizations are allowed to engage in both direct and grass-roots lobbying, and the Council is proud to have done so for these past 17 years, within the limits allowed for tax-exempt organizations under the Internal Revenue Code, and consistent with the registration requirements under state law.

DO YOU WANT OFF THE LIST? HERE’S HOW

If you do not wish to receive this list, please send an e-mail message to fitzKRC@aol.com and you will be removed from the distribution list. Feel free to forward this to anyone you feel might be interested, and to utilize the analysis with attribution as to the source.

WANT TO READ THE BILLS OR CONTACT LEGISLATORS?

For a copy of any bill, or to check the status of the bill, which committee it has been assigned to for hearing, and other legislative information, visit the Legislature's Homepage at http://www.lrc.state.ky.us

The toll phone number to reach a legislator in person is 502-564-8100.

The toll-free bill status line is 1-877-765-0447.

The toll-free message line is 1-800-372-7181, to leave a message for a legislator or a committee.

THE BEST WAY TO REACH LEGISLATORS

    Did you know that for a single fax to 502-564-6543, you can reach any legislators that you want to contact?  You can send a letter, for example, to all Senators and Representatives by listing their individual names on a cover sheet and asking that each get a copy of your letter.  The good folks at the LRC fax room will copy your fax and distribute it to all that you list (the recipients must be listed by name.)  The LRC webpage has a list of all legislators and all committee members.

Please note that the Council does not have recommendations on each bill. Some are tracked simply to assure that they do not become vehicles for industry-sponsored amendments. Recommendations are indicated with a plus (+) or minus (-).

WEEK ONE: “EVERYTHING OLD IS NEW AGAIN”

In week 1 of the session, a number of bills that were considered but not enacted during the 2000 session have been re-filed. Additionally, some new bills pertaining to the environment have been filed.

House Bill 2 (Stumbo) (House Natural Resources and Env. Committee) (+) This is the comprehensive mandatory garbage collection, anti-litter, advanced disposal fee on fast-food packaging, and container deposit bill considered during the 2000 session. The bill emerged from the Appropriations and Revenue Committee last session, but has been assigned this session to the Natural Resources and Environment Committee, which traditionally has given container deposit legislation a less-friendly reception.

House Bill 8 (Stumbo) (House State Government) (+) Limits lobbyist compensation during any calendar year to $1,000 for lobbying members of the General Assembly.

House Bill 9 (Stumbo) (House Elections & Const. Amendments) (+) Would place on the next statewide ballot a referendum question on whether the General Assembly should adopt a statewide container deposit program.

House Bill 12 (Tapp) (House Appropriations & Revenue)(-) Sales tax credits for purchase of gas for agricultural engines (including tractors). Tax credits should be means-tested to eliminate subsidies for industrial agricultural operations.

House Bill 15 (Cornett) (House Tourism, Development & Energy) (+) This bill would eliminate the right of eminent domain (condemnation) under KRS 278.502 for main natural gas transmission lines by persons or corporations engaged in transporting or delivering natural gas.

House Bill 20 (Belcher) (House Ag. And Small Business)(-) Amends KRS Chapter 246, which is the general enabling statute for the Department of Agriculture, to define "agriculture," "horticulture," "aquaculture," "poultry" and "livestock."  KRS Chapter 246 largely deals with the powers and functions of the Department of Agriculture. The immediate effect of these broad definitions would be to include aquaculture as an agricultural operation, and to include nursery operations as horticulture. Other statutes addressing agriculture refer back to KRS 246, so that the full effect of broadly interpreting agriculture to include aquaculture and all livestock and poultry operations, is broader.

This bill had a companion during the last session by Rep. McKee, that proposed to include these same definitions to amend KRS Chapter 151, which defines Kentucky's water resources policy, and includes water supply planning,  the water withdrawal permitting program, the state's authority to permit and control construction of dams and impoundments in streams, the floodplain permitting program, and the enabling authority for the Kentucky River Authority. It is possible that the intent is to broadly define agriculture under KRS Chapter 246 in order to create an argument that “agricultural uses," which are exempt from water withdrawal permitting and from review of their irrigation and ditch systems (except where the systems obstruct a stream), exempt all the activities define in KRS Chapter 246. This would include nurseries, which have not been previously deemed exempt for their water withdrawals, but have been seeking such an exemption.

The Council believes that industrial livestock and poultry operations should not be classified as "agricultural" so as to entitle them to the preferential treatment accorded traditional agriculture under state law. They rely on substantial water inputs that could adversely affect other users in a watershed if not properly controlled.

The Council believes also that aquacultural operations, which have some promise but also have potential adverse water quality impacts that must be carefully addressed, should be defined and regulated as separate and distinct from "agriculture."

House Bill 24 (Cherry) (House A & R) Exempts retail purchases associated with beekeeping operations from sales tax.

House Bill 27 (Marcotte) (House NR&ENV) (-) Bill would amend state law to exclude from vehicle emissions testing both in northern Kentucky’s state-run program and in Jefferson County’s Air Pollution Control District, all cars for their first four model years of age.

House Bill 34 (Bather) (House State Govt) (+) Creates an Office of Multicultural Health in the Governor’s Office, to address health status disparities among racial, ethnic, cultural, gender groups and geographic locations.

House Bill 40 (Richards) (Seniors & Military Affairs) Creates a certification program for communities seeking to attract retirees to settle in Kentucky.

House Bill 50 (Geveden) (House Local Government) (+) Creates mechanism for voters of counties to consolidate counties and their governments with one another.

House Bill 55 (Wayne, Riggs) (House Local Govt., Posted in Committee) (+) Would establish training requirements for planning commission and board of zoning adjustment members and planning and zoning officials and staff.

House Bill 57 (Cornett) (House NR&ENV) (+) Appropriates $2.5 million dollars from general fund to support recycling, waste reduction and litter prevention efforts by counties under their solid waste plans. Bill has some technical problems but in concept is sound and positive.

House Bill 87 (Stumbo) (H. State Government) Confirms executive orders establishing the Tourism Development Finance Authority in the Tourism Development Cabinet.

House Bill 91(Stumbo) (H. State Government) Confirms executive orders reorganizing the Office of Coal County Development into a Department within the Cabinet for Economic Development.

House Bill 100 (Barrows, Thomas, P.Clark) (H. Ag. & Small Business) Would create an industrial hemp research program.

House Bill 103(Damron) (Seniors & Military Affairs and Public Safety)(-) Would allow issuance of permits to install on-site sewage systems without inspection by the local health department, based on inspection and certification by a private civil engineer, presumably paid for that work by the developer or home builder. Would require the civil engineer to carry $100,000 in insurance and to pass a competency exam.

The Council believes that in matters so dramatically affecting public health as installation, alteration or construction of on-site sewage systems, privatization of the inspection and certification function to a civil engineer or any other third-party that is employed by and compensated by a party with an interest in securing approval for the system, is fraught with potential conflicts and problems. Additionally, proof of $100,000 insurance policy is insufficient to provide assurances that in the event of failure of the system, the homeowner can be made whole without resort to litigation.

House Bill 104 (House NR&ENV) Bill would establish a “voluntary clean-up program.” It will be analyzed during this next week, in conjunction with Senate Bill 2, and the Council will take a position concerning this bill and concerning the voluntary remediation issue in the next weekly mailing.

The Council believes that the clearest path to establishment of an acceptable voluntary remediation program is to enact the bill that was negotiated during the last session, as modified by Representative Stumbo and Bather to require a site reopener in the case of mistake rendering the remedation insufficient to protect the public.

House Bill 116 (Stein, Marzian, Bather) Would amend state civil rights and fair housing laws to protect against discrimination based on sexual orientation or gender identity.

House Bill 127(Yonts) Raises age of compulsory school attendance from 16 to 18.

House Bill 129 (Yonts) (-) Would increase speed limits to 70 mph from 65 mph on interstates and parkways, and set limits at 35 mph in business or residential districts, 55 mph on all other state highways, unless the state Transportation Cabinet sets a lower standard. The increased speed limit will increase fossil fuel consumption and automotive air toxic emissions, and likely reduce traffic safety.

House Bill 134 (Fischer) (Support with amendments) Bill would ban the use of MTBE in gasoline. The Council supports the phasing out of the use of MTBE due to concerns regarding mobility in soil and groundwater in the environment in the event of releases and leakage from underground storage tanks. The Council believes the use should be phased-out to allow the market to respond to assure that supplies of other reformulations of gasoline (i.e. utilizing ethanol or other oxygenates to replace some of the benzene) are available.

In the interim, storage and dispensing fuels containing MTBE should be prohibited from any storage tank not meeting upgraded underground storage tank standards.

House Bill 136 (Adams) Would allow public or private water utilities to expand beyond their service territories to reach unserved customers if the utility in that service area has no formal plans to extend service within 12 months.

House Concurrent Resolution 23 (Thomas, Vincent and Adkins) A feasibility study for establishment of a Museum of Kentucky Agriculture.

Unless the legislature takes action to curtail the potential for environmental problems and the economic problems facing the small and moderate-sized farms by the unchecked rise in contract agriculture in livestock and tobacco, the first exhibit for the new museum could be the Kentucky small farmer. Fair contracting legislation to protect producers, and integrator liability for corporate contracting entities is needed to prevent victimization of Kentucky farmers.

Senate Resolution 3 (Williams) Adopts the rules of procedure for the Senate 2001 regular session, and makes changes in existing rules.

Senate Bill 1 (David Williams) Imposes limitations on campaign contributions by business entities seeking to do business with the Commonwealth.

Senate Bill 2 (Leeper, Karem) This is a modified version of the “voluntary remediation bill” filed as Senate Bill 4 and in the last session. The bill has numerous flaws which make it an unacceptable bill.

These flaws include:

- a lack of a clear obligation to identify and disclose, characterize the extent of, and to fully remediate all releases of hazardous substances on a parcel of land to a level protective of public health and the environment

- a lack of clear authority of the Natural Resources & Environmental Protection Cabinet to require more thorough characterization of releases, including additional data collection and analysis;

- a lack of a clear standard for what constitutes an acceptable characterization and remediation plan (i.e. that the applicant must fully characterize the extent of all releases and propose a combination of risk removal, or risk management sufficient to assure protection of the public and environment;

- a failure to require the Cabinet respond to any written comments received regarding a proposed remediation work plan, and a failure to allow public comment regarding the scope of investigation and characterization of the releases on the property;

- allowing a covenant not to sue to be issued protecting a responsible party from further liability even where the contamination is not fully remediated;

- a failure to reopen a “covenant not to sue” and to take additional action against the responsible party for additional remediation of hazardous releases if the cleanup plan was approved and the state had made a mistake, resulting in the need for further cleanup to protect health or the environment.

The Council opposed the bill, and House Leadership agreed that the bill lacked a key provision that would allow the Cabinet to from require “reopening” of a site cleanup plan, and would allow further action against the responsible party for additional remediation of hazardous releases if the cleanup plan was approved and the state had made a mistake, resulting in the need for further cleanup to protect health or the environment. Given the recent example of the closure by the Cabinet during the “skunkworks” process convened to eliminate the backlog of Underground Storage Tank closures, of many underground storage tank sites as “clean” notwithstanding significant remaining contamination, a bill that would force the public or neighbors to endure health risks because of an agency mistake resulting in site clearance, is untenable.

- creation of a “Cleanup Standards Science Advisory Board” that would set the clean-up levels for all hazardous releases both under this “voluntary” program and in Cabinet enforcement cases. The problems with this Board include:

* the failure to require the setting of standards at a level sufficiently protective of the public based on current and future land uses;

* the shifting of the burden from the “precautionary principle,” where in the absence of complete health data a more conservative assumption is chosen, to the “prove harm” model where standards are set only where there is a “substantial present or probable future risk” to health or the environment;

* the Board qualifications and composition are insufficient to assure the adoption of standards that are protective of the public interest.

* the Board functions are duplicative of research being conducted and funded at the national level,.

* the fiscal impacts will be potentially enormous, and the bill contains no new funding but rather requires that the Natural Resources Cabinet provide any needed funding for the Board, including research funding.

The end result of this bill will be adoption of less-protective standards, with the cabinet being forced to adopt and administer standards dictated by a Board that is not directly accountable for its decisions, even where the Cabinet believes to be insufficient to protect public health and the environment.

For almost twenty years, industries and industry associations have been engaged in an relentless effort to lower clean up standards, to increase permissible residual contamination of properties that they and their predecessors contaminated, and to shift the hidden costs of land and groundwater contamination into the public domain. This bill is but the latest iteration of that effort and should not be enacted.

Senate Bill 4 (Leeper) (-) This was the “voluntary remediation” bill that was negotiated during the last session. It has been withdrawn, indicating that the sponsor intends to move Senate Bill 2 instead of this bill.

Senate Bill 8 (Seum) (Senate Education) Would create a “Motorcycle Safety Education Advisory Commission” to advise the Transportation Cabinet on motorcycle safety education. Also introduced in House by Perry Clark as House Bill 76.

Senate Bill 47 (Sanders) (S. Eco. Development, Tourism & Labor) Extends existing priorities in KEDFA economic assistance to include the secondary wood products industry.

The bill may need a cross reference to the Kentucky Forest Products Council legislation to assure that economic development assistance is not given to companies which would increase timber production to an unsustainable level.

Senate Bill 48 (Senate AG&NR) (-) (Seum and others)

Bill would eliminate vehicle emissions testing programs in Northern Kentucky and Jefferson County as of October, 2003.

The bill would result in direct and adverse environmental and economic consequences, including the possibility of federal sanctions for failure to meet ozone reduction goals and to maintain a VET program, and would result in decline of air quality related to vehicle emissions and in probable imposition of further air pollution controls on the major industrial sources in both Jefferson County and Northern Kentucky to compensate for the lack of pollution control efforts for the mobile sources..

Senate Bill 56 (Senate AG&NR) (-) Creates a program for anti-litter education, and a 19-member “KY-CLEAN Board” (with representation from packing industries, manufacturers, Sierra Club, KFTC and government) in the Transportation Cabinet to oversee the funding and programs. Bill is premised on assumption that anti-litter education is most effective way to prevent highway litter.

The bill calls for a strategic plan for litter reduction, a litter hotline for reporting incidents, funding of local litter prevention and education programs based on the strategic plan, manage an media anti-litter campaign, adopt regulations.

The bill also calls for establishment in each county (or multicounty area) of a litter control and prevention advisory and coordination board to assist in creating and implementing local programs for litter control and prevention. Each county advisory and coordination board is mandated to develop a long-term community strategy designed to enhance litter control and prevention, considering all county resources, both private and public.

The state Board controls disbursement from a fund established by the law which is funded by contributions, federal funds, and a voluntary taxpayer refund contribution on state income taxes.

The goal of litter abatement is a laudable one. The bill, however, creates a significant new bureaucracy that is not needed, and which will undercut rather than strengthen solid waste efforts.

Each county and in some cases multi-county areas aready have a local entity responsible for development and implementation of a solid waste plan, under existing law. In some counties, 109 Boards serve the functions; in others, it is the county Fiscal Court. A new statewide board and new local boards are not needed to address litter; instead, any heightened mandate for additional educational or enforcement efforts regarding litter reduction should be made part of the county’s obligations under the solid waste plan; with educational funding going to Transportation’s Adopt-A-Highway Program and the Natural Resources Cabinet’s education programs, as well as to the Kentucky Environmental Education Master Plan, which could development and implement quality curricula on litter and waste for all schools K-12.

The goals of the bill should be met within the existing solid waste framework, and must be funded by a source more predictable and robust than voluntary income tax refund checkoffs.

Senate Bill 60 (David Williams) (Senate State & Local Govt.) (-) Bill seeks to place limits on form and content of Executive Orders, creating a referral process to the legislative leadership prior to such orders becoming effective, establishing sunset provisions for any administrative bodies created by executive order.

Bill also amends KRC Chapter 13A relating to administrative regulations to further curtail the issuance of emergency administrative regulations by eliminating the Governor’s power to declare an emergency where the immediate adoption of a regulation is needed to “protect human health and the environment.”

Instead, unless the emergency regulation is needed to prevent loss of federal funds or to respond to a federal deadline, no emergency regulations can be adopted unless there is an imminent danger to public health, safety, welfare or property, and even then only where the Governor could have foreseen the imminent danger within the three months prior to the filing of the regulation.

By eliminating the ability of the Executive Branch to adopt emergency regulations in order to protect human health and the environment, and instead limiting emergency regulations to cases of “imminent danger,” the law discourages the administration from acting to prevent harm until the last minute, heightening the risk of harm occurring to life, limb or natural resources. The existing framework for administrative regulation adoption, and annual sessions, provide more than sufficient oversight of the regulation adoption process. The further restriction of the Governor’s emergency powers goes too far in precluding prompt government action to protect the public and environment from harm.

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