Action Alert: February 10, 2001

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Alert Feb 10, 2001  Posted: February 12, 2001


For a session billed by leadership as a "go-slow " session, the volume of bills filed by members of both Houses suggests otherwise. Environmental bills good and bad are a significant part of the legislative landscape this session.












* SB 2 the so-called "brownfields" bill, weakens state cleanup law and allows industries who have contaminated lands to lower cleanup obligations and to participate in a board that will dictate to the state what are the cleanup standards. Please call and fax your Senator and Representative to oppose this bill, and to instead support the consensus approach agreed to by the city, state and environmental community during the last session.




* SB 48 This bill will be heard Tuesday on adjournment by the Senate Agriculture and Natural Resources Committee, and guts the vehicle emissions testing program in Louisville and Northern Kentucky, promising dirtier air, possible federal sanctions, and adverse effects on economic development in those communities.




SB 60 seeks to prevent the Governor from adopting emergency regulations needed to protect public health and the environment unless the harm is imminent. KRC opposes any further restrictions on the emergency powers of the Governor to act when needed to protect public health. This bill will be voted on next week please call your Senator and ask them to oppose SB 60.




HB 9 A referendum on container deposit legislation, passed committee and will be voted on by the full House of Representatives. It deserves your support! Contact your senator and urge them to take up and pass this amendment also.




HB 20 contains definitions of agriculture that could undercut enforcement of environmental laws. Please call, fax or e-mail Representative Belcher at




HB 176 attempts to curtail cabinet authority over corporate industrial livestock and chicken operations. It will be heard in the House Ag and Small Business Committee and deserves opposition. Please call or fax the members of that committee to oppose HB 176.




HB 183 is a comprehensive solid waste bill that will be heard in House A & R, and which includes an advance disposal fee to fund solid waste litter and education campaigns. Please call House A & R Committee members to support this bill.




HB 207 lifts the veil of secrecy and creates public accountability in reporting on applicants for state economic development assistance, and deserves your support.


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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.








If you do not wish to receive this list, please send an e-mail message to 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.








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




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.






    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 (-).




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) (posting waived) (+) 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) (To House Rules with House Committee Amendment)(-)




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.




The concerns with this bill are twofold first, that where there are other statutes such as KRS Chapter 151 which regulates water withdrawal and exempts agriculture from permit requirements but which lacks its own definitions, this extremely broad definition of agriculture could be argued to be indicative of legislative intent in using the term.




KRC has given Rep. Carolyn Belcher language that would clarify that the definitions are not intended to be used to define the scope of the term in any other statute. It is unclear whether she will agree to amend the statute.




The other concern is that this bill became the vehicle for the Senate to attempt to exclude corporate integrators from co-permitting liability for concentrated animal feedlot operation water discharge permits last session. Rep. Belcher has committed that this bill will go through "cleanly" or not at all.




Please call, fax or e-mail Representative Belcher at




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) (To House Rules) (posting waived) Creates a certification program for communities seeking to attract retirees to settle in Kentucky.




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




House Bill 55 (Wayne, Riggs) (House Rules) (+) 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) (Posting waived) (+) 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. Rules) Confirms executive orders establishing the Tourism Development Finance Authority in the Tourism Development Cabinet.




House Bill 91(Stumbo) (H. Rules) 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) (To H. Rules with committee substitute) (Posting waived) Would create an industrial hemp research program.




House Bill 103 (Damron) (to House Rules with committee substitute) 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.




The Council had raised a concern that 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 raised potential conflicts and problems. The House Committee Substitute allays those concerns to an extent by restricting engineering approval to registered professional engineers licensed in Kentucky, so that a certain level of competence is demonstrated by the engineers passing the licensing exam, and so that problems with engineer approvals would allow an aggrieved party to file complaints with the Board of Professional Engineers to seek redress.




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) (Judiciary) Would amend state civil rights and fair housing laws to protect against discrimination based on sexual orientation or gender identity.




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




House Bill 129 (Yonts) (Transportation) (-) 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) (Tourism) (Provisional support with amendments) Bill would ban the use of MTBE in gasoline. The Council supports the phasing out of the use of MTBE as a reformulation additive (it has been used at much lower concentrations for years) 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 gradually, however, 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, and underground storage tank remediations which are now requiring remediation to meet standards based only for benzene, toluene, xylene and EDB/EDC should be broadened to require testing and remediation for MTBE contamination.




House Bill 139 and House Bill 146 (posted in committee) (+) both clarify the reporting requirements for lobbying organizations to make them monthly during legislative sessions on odd and even years. KRC has already begun voluntarily reporting expenses to the Legislative Branch Ethics Commission on a voluntary basis and has urged other non-profits to do the same.




House Bill 143 (Yonts) (House NR and Env.) (+) Amends Environmental Audit Privilege law to restrict its application, particularly in criminal cases.




EPA has threatened to remove Kentucky's authority to implement the Clean Air Act because of the breadth of this "audit privilege" law, which allows companies to seek immunity from enforcement for self-discovered violations. The state law is overbroad and compromises citizen and state-based enforcement efforts.




Industry is now faced with a choice, having advocated this law. They can seek legislative approval to narrow the law or face federalization of air, water, and waste permits.




House Bill 146(Palumbo) (+) lobbyist registration filing. See above discussion under HB 139.






House Bill 157 (L. Belcher) (House Tourism & Eco. Dev.) excludes from Public Service Commission jurisdiction sanitation districts created under KRS Chapter 67.




House Bill 158 (L. Belcher) (H. Ag and Sm. B.) exempts pesticide dealers from paying fees for operators license.




House Bill 165 (H. Local Government) (+) Requires public notice and hearings on certain state-authorized capital projects.




House Bill 176(Cherry) (H. Ag. Sm. Business) (-) Bill defines animal feeding operations and "concentrated animal feeding operations" and sets by statute the thresholds for regulation of industrial livestock and poultry operations, and is apparently intended to prevent the Cabinet from imposing either setbacks or integrator liability.




The Cabinet has, for a number of years, attempted to impose regulations on these industrial-scale livestock and poultry (particularly pig and chicken) operations needed to protect public health and the environment. At KRC's suggestion, they included co-permitting of the corporate integrators, who own and dictate the manner of raising the animals, with the contract "farmer" who raises them in confined conditions. They also included modest setbacks from rivers, lakes, wells and neighbors.




This bill is an inartful effort to force the Cabinet to permit only the contract farmer, and to preclude the use of any setbacks, by restricting the Cabinet to imposing only those conditions that are the minimum required under federal law.




House Bill 179 (Lindsay) (House Judiciary) Makes technical correction in state nuisance law.




House Bill 183 (Stumbo) (H. A&R) (+) Rep. Stumbo's comprehensive solid waste bill, which includes a modest "environmental impact fee" (advance disposal fee) on beverage containers and fast food packaging to fund highway litter cleanup and other solid waste programs at the local level. Bill also includes strengthening of litter penalties, empowers solid waste coordinators to issue litter violation notices, provides a flexible mandatory collection mandate that allows counties to demonstrate effectiveness of programs other than end-of-curb collection, and provides mechanisms for county collection of delinquent solid waste fees.




House Bill 190 (Fischer) (House Judiciary) (-) Aimed at prohibiting local laws and ordinances banning discrimination based on sexual preference.




House Bill 193 (R. Adams) (House Tourism, Development) (+) Bill would clarify the Public Service Commission's obligation to provide public notice where any antenna tower for cellular or PCS communication is proposed.




House Bill 207(Wayne and others) (House Rules) (+) Bill creates reporting obligations for companies applying for state economic development assistance.




House Bill 218(J. Arnold) Bill amends Chapter 13A dealing with administrative regulations, to revise procedures for fiscal notes, and to extend the time during which the Administrative Regulation review committee has to review a proposed regulation.




House Bill 229 (Stumbo) (House A & R) (+) Bill establishes an extremely modest surcharge on sales of dog and cat food to create an animal care and control fund to assist in funding local animal care and control programs.




House Bill 231(Crenshaw) (House State Government) (+) Recognizes sanitation workers in Lexington-Fayette County as eligible for hazardous duty retirement coverage.




Occupational risks and injuries associated with this aspect of solid waste management are often overlooked. The population, outside of medical establishments, at greatest risk for needle-stick injuries and other occupational


injuries are sanitation workers. They deserve public support for this bill.




House Bill 237(L. Clark and others) (House Nat. Res. And Env.) (+/-) This is the Governor's collection bill, which requires counties to impose end-of-curb garbage pickup and provides tax-bill based mechanisms to enforce the requirement.




The bill has significant language problems, including a definition of "administering agency" that is so broad as to allow a county to be delegated not only solid waste garbage pickup responsibilities but all air, waste and water pollution permitting authority!




Beyond the language glitches, the bill does for the first time recognize that some counties may have other approaches to garbage collection besides end-of-curb that may be functioning well, but the "opt-out" that is provided to counties is based on the unrealistic goal that by January 1, 2004, ALL open dumps in that county will be eliminated. Failing that, a county must impose end-of-curb collection or face a loss of road funds.




The Council supports Rep. Stumbo's more comprehensive bill, and believes that the benchmark of eliminating all dumps in House Bill 237 is unreasonable, particularly in light of no additional state funding. Appropriate benchmarks should be set to allow a county to demonstrate through a combination of education, enforcement and access, that it can meet a benchmark of collection and dump elimination comparable to an end-of-curb county within a reasonable time. HB 237 does not, at this time, contain comprehensive and achievable benchmarks.




House Bill 238 (Wilkey and others) (House Eco. Dev.) (-) This bill would allow tax increment financing for local projects by air boards and local industrial development authorities, such as the controversial airpark in western Kentucky.




KRC opposes the use of tax-increment financing by local industrial development authorities and air boards absent full environmental impact analysis, alternatives analysis, necessity and economic feasibility analysis to justify the use of such financing for air board or local industrial development authority projects. Without accountability, this mechanism could be used to fund projects such as the airpark project even though the projects could not justify the need sufficient to attract federal funding or make a case for state funding.




House Bill 242(Stumbo and others) Bill relates to coal economic development and revitalization of coal mining and processing facilities.




House Bill 245(Marcotte and Walton) (+) Bill would require Natural Resources Cabinet review of transportation impacts of coal and non-coal mining operations based on a plan submitted by the permit applicant, and to deny permits where transportation would pose a risk to traffic safety or degrade air.




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.




House Concurrent Resolution 32(Bratcher) Directs subcommittee on energy to study the causes of the rise in natural gas prices and methods to reduce price volatility and to support low-income programs.




House Concurrent resolution 34 (Bather) creates Task Force on Home Energy Affordability.




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) (To Senate Rules with committee and Floor amendments) Imposes limitations on campaign contributions by business entities seeking to do business with the Commonwealth.




Senate Bill 2 (Leeper, Karem) (To Senate Rules with committee amendment) (-) 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. At least four and possibly a majority of members could be representatives of regulated industries who would benefit from weakening cleanup standards;




* 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 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. Rules) 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 51(Casebier) (Senate Transportation) (+) Bill requires that passenger vehicles owned by the state not used for law enforcement be six cylinder or less; transfers larger vehicles to law enforcement.




Senate Bill 56 (Senate Rules with committee substitute) 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. In response to KRC concerns, the bill was modified to work locally within the existing solid waste coordinator framework. The Council remains convinced that this is a piece of a larger comprehensive solid waste program and that this and other solid waste efforts must be funded by a source more predictable and robust than voluntary income tax refund checkoffs.




Senate Bill 60 (David Williams) (Senate Rules with amendments) (-) 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.




Senate Bill 72 (Seum) (-) Bans MTBE after September 30, 2001. See discussion under House Bill 134.




Senate Bill 73(Roeding, Seum) (-) The bill would, among other things, eliminate the Governor's authority to adopt emergency regulations needed to protect public health and the environment until the harm was imminent. It has one positive aspect, which is to clarify that the public comment period on regulations runs a full 30 days, rather than the confusing and much shorter period, which now occurs in the absence of a public, hearing on proposed regulations. Despite this provision, the bill should be opposed.




Senate Bill 86(Harris) This bill shifts the records, funds and equipment of the Kentucky Forest Resource Council to the state Division of Forestry.




Senate Bill 97 (Mongiardo and Pendleton) Bill would impose, in counties without zoning, a requirement for a buffer zone of 20 feet and a fence, between any land proposed for conversion to non-agricultural use, and adjoining agricultural lands. In counties with zoning, the same obligation would exist.




Senate Bill 122 (Moore) (Under review) Bill amends anti-littering laws and diverts a portion of fines to anti-litter programs.




Senate Resolution 36 (Mongiardo) Resolution to study the feasibility of expansion of Pine Mountain State Park facilities.

By Kentucky Resources Council on 02/10/2001 5:32 PM
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