2023 Legislative Update #7

BILLS & RESOLUTIONS FOR WHICH KRC HAS TAKEN A POSITION 

HOUSE BILLS

HB 4 (Branscum and others)(To Governor)(-)
Bill would revise the current statutes on the Kentucky State Board on Electric Generation and Transmission Siting, weakening of protections for landowners from what is bring required by the state Siting Board under current law. The bill weakens existing protections for landowners and undercuts local government authority. Revisions are needed to assure the adequacy of decommissioning bonds, and to fully respect the rights of landowners during the decommissioning process. 
 
Senate Committee substitute and Senate Floor Amendment 1 attempted but failed to fix several of the problems with the bill.  KRC testified in opposition to the bill before the Senate Agriculture Committee, which can be viewed at 35:05 here.
 
HB 40 (Lewis, Hale)(H. Rules, recommitted to H. A&R)(-)
What would a legislative session be without a bill proposing changes in the administrative regulation process to address regulations found by an interim legislative committee to be “deficient?”  Bill in plain conflict with the separation of powers doctrine under Sections 27 and 28 of the Kentucky Constitution, would nullify any regulation found deficient by a legislative committee unless the agency appealed that finding to the Attorney General’s office within 10 days and the AGs office overruled the finding.
 
In addition to the unconstitutionality of granting interim legislative committees veto power over a regulation, the bill is a solution in search of a problem. The number of regulations found deficient and put into effect by the Governor under current law notwithstanding a finding of deficiency by a legislative committee is negligible on an annual basis, and in many years, there are none.  Since 2005, the percent of regulations out of the over 11,000 reviewed by legislative committee that have been deemed deficient, and which have gone into effect notwithstanding, is 3/10^ths of 1% of those regulations.
 
Any effort by the General Assembly to direct or cause an automatic nullification of a regulation during the legislative interim, whether directly or by referral to the Attorney General, as in this case, would run afoul of the LRC v. Brown decision.  The General Assembly can make findings of deficiency and can act on those findings during the next legislative session, but it cannot delegate to a committee or in this case to another constitutional officer, the power to nullify a regulation.
 
KRC testified in opposition to the bill in House Committee, which can be viewed here.
 
HB 160 (Freeland)(To Governor)(+)
Would amend existing law to fix problems created by a previous legislative amendment to state clean water laws regarding Westlake Vinyl and a pre-2004 mixing zone that had been approved for a bioaccumulative chemical of concern. Prior to 2004, mixing zones that allow a certain amount of dilution of discharged wastewater prior to meeting in-stream water pollution limits, was available for bioaccumulative chemicals of concern.  Westlake was one of the facilities that had obtained such an approval, and those pre-2004 approvals were exempted from a ban on mixing zones for BCCs that has been in effect since that time. The bill corrects many of the problems created by the previous bill, which KRC had unsuccessfully opposed, that could have, if implemented, resulted in Kentucky losing primary regulatory authority for Clean Water Act permitting in the Commonwealth. 
 
KRC testified before committee in support of the changes to restore the Cabinet’s ability to determine on a permit-by-permit basis whether a pre-2004 mixing zone granted for a BCC should be continued, reduced, or eliminated.  That testimony can be viewed here. The bill also does not prevent the Cabinet from requiring on a case-by-case basis that a discharger using multi-port diffusers in order to meet water pollutant discharge permit limits adjust any mixing zone to account for the use of diffusers in accelerating the mixing and dilution of wastewaters.
 
HB 222 (Gooch)(To Governor)(+)
Would extend the levy of the hazardous waste management assessment until June 30, 2032.
 
HB 236 (Sharp and others)(To Governor)(-)
Would provide that fiduciaries shall consider the sole interest of the members and beneficiaries of the retirement systems using only pecuniary factors and prohibit the consideration of or actions on nonpecuniary interests including environmental, social, political, and ideological interests.
 
HB 264 (Pratt)(To Governor)(+/-)
Law would establish an office of regulatory relief that would be empowered to waive compliance with state laws and regulations in order to allow a “sandbox participant” to demonstrate an innovative idea.  To the extent that such a program would allow the suspension of applicability of an environmental protection or workplace safety or health standard, such delegation to the newly-established office is inappropriate, and could jeopardize continued delegated authority for Kentucky to manage several environmental and health and safety programs.  Many individual regulatory programs already contain waivers and variances that allow for innovative or fundamentally different factors while maintaining essential public protections and if others are desired, they should be developed by those agencies and with assurances that such protections will never be sacrificed or traded off. 
 
KRC sent Representative Pratt suggested language to assure no compromise to workplace health and safety, and to environmental health and safety regulations, and to programs delegated under federal law. That language was not included. KRC will monitor the implementation of the law if it is enacted.
 
HB 384 (Dossett)(H. Rules, recommitted to H. A&R)(+)
Would establish the Healthy Farm and Food Innovation Board and fund to help fund nonprofits working on health food access. House Bill 384 would create stability and opportunities for direct farm impact food access programs— such as Kentucky Double Dollars, Farms to Food Banks, and Fresh RX for MOMs—and pave the way for additional new efforts that support the vitality of Kentucky agriculture and the health of Kentuckians.
 

HOUSE RESOLUTIONS