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Kentucky Resources Council, Inc.
Post Office Box 1070
Frankfort, Kentucky 40602
(502) 875-2428 phone
(502) 875-2845 fax
e-mail FitzKRC@aol.com

March 5, 2005

REGULAR SESSION: Bills We're Watching Update #7

This list profiles the significant environmental, conservation, consumer and general government bills that are being tracked by the Council during the 2005 session. This is the seventh of nine updates. It will be updated at least weekly, and will be supplemented with more detailed analysis on key bills.


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For a copy of any bill, or to check the status of the bill, to track 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 phone number to reach a legislator in person is 502-564-8100 (this is not toll-free).

The toll-free meeting schedule information line is 1-800-633-9650. The toll-free message line is 1-800-372-7181, to leave a message for a legislator or an entire committee. The TTY message line is 1-800-896-0305. En Espanol, el nombre es 1-877-864-0202. The toll-free bill status number will be available in a week.


Did you know that for a single fax to 502-564-6543, you can reach all of the legislators that you want to contact? You can send a faxed 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 web page has a list of all legislators and all committee members.


On January 4, 2005, the General Assembly convened in Frankfort for the regular "short" legislative session. The General Assembly has returned to session until adjournment on March 22, 2005.

Please note that 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 polluter-sponsored amendments. KRC's position concerning bills is indicated with a plus (+) or minus (-). The primary sponsors and current status of the bill are also noted by Committee or chamber.

KRC has removed from this update the bills that have not been heard by the committee to which they were assigned, and will likely not pass this session, and those which have become law.

SB 38 (Kelly) (Passed both houses, to Senate for concurrence with House amendments)

Bill codifying Fletcher Administration reorganization of economic development agency and boards. (KRC tracks all reorganization bills in order to monitor any provisions or amendments that would diminish the regulatory powers of environmental or public health.)

SB 41 (Kelly) (Passed both houses, to Senate for concurrence with House amendments)

Bill codifying Fletcher Administration reorganization of natural resources, environment, labor and public protection agencies into Environmental and Public Protection Cabinet. Senate Committee Substitute transfers Department of Energy to Tourism Cabinet.

SB 44 (Kelly) (Passed both houses, to Senate for concurrence with House amendments)

Bill codifying creation of Office of Homeland Security to coordinate comprehensive statewide homeland security strategy.

SB 45 (Kelly) (Passed both houses, to Senate for concurrence with House amendments)

Bill codifying Fletcher Administration reorganization of Justice Cabinet.

SB 46 (Kelly) (Passed both houses, to Senate for concurrence with House amendment)

Bill codifying Fletcher Administration reorganization of Education Cabinet.

SB 49 (Kelly) (Passed both houses, to Senate for concurrence with House amendments)

Bill codifying Fletcher Administration reorganization of Finance Cabinet.

SB 150 (Buford) (H. Rules)

Removes current prohibition against issuance by nonprofit corporations created by local government, of bonds for construction or acquisition of electric facilities.

SB 157 (Stivers) (H. Judiciary) (-)

The bill makes mandatory the posting of an appeal bond in zoning cases where the person is challenging a development proposal or land use change. The bill imposes at $25,000 to 100,000 appeal bond on any person seeking appellate court review of a zoning or planning approval. Under the bill, if a person has not prevailed in a circuit court appeal of a land use approval, before that person may file an appeal with the Court of Appeals the circuit court would be mandated, upon motion, to impose a $25,000 minimum appeal bond, which could be increased to $100,000 depending on the appellees’ proof of the costs, including delay, that the appeal could impose.

The chilling effect on meritorious appeals is apparent, since the bill creates a financial bar to seeking appellate review regardless of the strength of the appeal, and that will dissuade parties from seeking review or meritorious claims.

The bill is a mean-spirited, punitive and arbitrary measure, intended to dissuade neighbors and neighborhood associations from accessing the courts. This singling out of this class of appeals for mandatory imposition of appeals bonds presupposes that appellants seeking review of a trial court decision upholding the proposed rezoning are presumptively or more likely to be frivolous and that there is a need to constrain the right to seek review for all appellants, regardless of the strength of or merits of the appeal. KRC rejects this premise.

After the House Judiciary Committee refused to entertain the bill, the Senate Judiciary Committee attached a version of the bill to HB 50, an unrelated bill that was before the Senate. The House is expected to refuse to concur with the amendment.

SB 175 (Stivers)( Passed both houses, to Senate for concurrence with House amendment)

Bill provides authorization to Environment and Public Protection Cabinet to issue permits under Section 404 of the Clean Water Act. House amendment contains language drafted by KRC that requires report to legislative committees concerning statutory, regulatory and budgetary changes needed to support state adoption of the program.

Special thanks for Representatives Meeks, Riner and Adkins for their assistance in adding the floor amendment to the bill in order to create benchmarks for determining whether the state management of that program will improve environmental protection, and the costs of state assumption of the program.

SB 180 (Stivers)(H. Rules)

Amends state law to extend the authority, beyond September 30, 2004, for remining incentives in Kentucky when the federal authority is extended.

SR 43 (Ridley & Pendleton) (Adopted)

Encourages state agencies to assist in promotion and preservation of Trail of Tears National Historic Trail.

SR 154 (Tapp & Tori) (Senate Consent)

Expresses support and recommends future allocation of $2 million in coal severance tax receipts to support Kentucky Clean Coal Technology Project.

HB 2 (Weaver) (H. Rules)

One of a number of bills introduced that would amend the state constitution to mandate that the General Assembly not adjourn a regular “long” session without enacting a budget and providing that, if they cannot accomplish that in the normal 60 legislative days for the long session, that they remain in session without pay until a budget is adopted. Pass committee after amendment to deny compensation to Governor and his Cabinet in the event that budget doesn’t pass in the 60 days.

HB 8 (Cornett) (S. Floor) (-)

Expands existing “extended weight coal haul road system” to include all forms of mineral, oil and gas. This system allows trucks to haul in excess of the maximum gross weight limits for state road systems for payment of a decal fee. Bill also broadens ability of any mineral haulers to operate overweight on roads not included within the extended weight system through a cooperative agreement.

The Kentucky Transportation Cabinet estimates that the bill will add $360 million in costs to the road fund for bridge replacements and $25 million each year due to increased maintenance and bridge repair costs.

The haulage of coal and non-coal minerals, and use of coal, non-coal and oil/gas related heavy equipment and trucks on state and county roads in this state present significant public health, safety and quality of life concerns. The damage caused by hauling overweight through local neighborhood and residential community roads that were never designed to carry such industrial traffic, and interference with the quality of life of residents of regions where mineral extraction occurs, deserves legislative attention. Expansion of the existing problem of coal hauling overweight to include other forms of minerals, compounds rather than resolves the underlying problem.

The House passed the bill by a vote of 55-32. The Senate Committee, after promising public input on the bill but failing to provide for it, adopted a committee substitute. It is pending before the Senate, where a growing chorus of city, county and private interests question the wisdom of increasing truck weights based on safety and road damage concerns.

HB 29 (L. Clark & Draud) (S. Rules)

Bill providing for joint Senate and House cosponsorship of bill passed either chamber where a substantially similar one is pending in the other chamber.

HB 59 (Weaver) (To Governor)

Allows an agency to withhold from disclosure public records that might expose a vulnerability to terrorist act. The balance between the public’s right to know of the use, storage, and handling of hazardous and dangerous materials by facilities, and the desire to protect against exposure to vulnerabilities is a topic hotly debated in the nation. Sponsor agreed to a floor amendment, offered by Rep. Jim Wayne at KRC’s request, to assure that the exemption from disclosure records of “public utility” water, wastewater, sewage and gas systems would not impede access by the public to information necessary to determine utility compliance with air, waste and water pollution control obligations. The amendment was considered by the sponsor to be a friendly amendment and was adopted by the House. KRC appreciates Rep. Weaver’s and Rep. Wayne’s assistance.

HB 77 (Graham) (To Governor)

Act provides procedures for dissemination of information from office of Attorney General to state and local government on Open Meetings and Open Records Act procedures.

HB 79 (Baugh) (To Governor)

Bill allows for new category of Master Logger designation entitled “temporary master logger designation,” and allows Environmental and Public Protection Cabinet to establish requirements for that designation, and allows the temporary master logger to supervise a timber harvesting operation provided that the cabinet receives notice prior to beginning the operation. Sponsor agreed to technical committee amendment requested by KRC to clarify that the temporary license would expire after 4 months.

HB 211 (Wayne) (S. State & Local Govt)

Makes several amendments to Executive Branch Ethics Commission operating procedures and reporting requirements.

HB 225 (Pullin) (Passed both houses, to House for concurrence with Senate amendment)

Creates a Kentucky Gas Transmission Authority with the Finance Cabinet, to issue revenue bonds to fund construction, improvement or repair of gas transmission pipelines where no transmission lines exist or where existing lines have insufficient capacity.

As initially drafted the bill raised a number of questions. In response to KRC’s concerns, the sponsor agreed to a series of committee and floor amendments to clarify that the authority will assist in financing repairs or construction of pipelines in constrained or underserved areas but will not own or construct lines, and several other technical changes.

HB 267 (Hoover & Feeley) (S. A&R)

The House proposed Executive Branch Budget.

HB 272 (Hoover) (S. A&R)

The House “Tax Modernization” Package. Among measures included are (1) a 3-year lower property tax rate for property that has been remediated for contamination under the state voluntary remediation law; (2) a tax credit for dealers distributing biodiesel fuel; (3) an individual or corporate income tax credit against expenses incurred in characterizing the extent of contamination and in remedying contamination of sites in the voluntary environmental remediation program; (4) a “clean coal credit” of $2 per ton against corporate income taxes individual income taxes or corporate license taxes, to electric power companies per ton of coal used to generate power at a “clean coal” facility. “Eligible coal” is that coal that is mined in Kentucky; (5) tax credits and inducements for companies incorporating technologies or other changes to produce environmentally superior products in terms of use of recycled content, lesser toxicity in manufacturing or use, or energy conservation; and (6) credits for rehabilitation of historic structures.

With respect to the “clean coal credit,” KRC has several concerns. First, why is the state creating tax credit incentives for installation of “clean coal technologies” when installation of those technologies are already required by law for new plants. Additionally, providing credits to companies based on tonnage of Kentucky coal burned is a Kentucky coal subsidy rather than a meaningful incentive for construction of new more efficient electric generation facilities, for whom the choice of fuel supplier depends on quality, reliability of delivery, and fuel composition. Credits or other inducements should be directed at the improvements in the efficiency in conversion of fuels to energy, improvements in waste minimization and reductions in emissions from such units, and other criteria that reward deployment of new generation technologies that perform better than baseline best available technology at capturing mercury, CO2 and other pollutants.

The House modified several aspects of the Governor’s tax plan, including lowering the cigarette tax increase proposed by the Governor, removing the proposed retail liquor tax and instead increasing the wholesale tax, and removing more low-income residents from the tax filing population.

HB 337 (Palumbo)(S. Eco Dev.)

Bill relates to tax increment financing, and provides a process for creating “development areas for community redevelopment” in which identified distressed areas can be identified as redevelopment areas, and utilize tax increment financing and other redevelopment assistance tools.

HB 440 (Nesler)( Passed both houses, to House for concurrence with Senate amendment)

Amends existing law to require that installation and maintenance of gas appliances comply with manufacturer and administrative requirements and limiting licensee liability for damages for nonconforming installation or maintenance.

HB 472 (Lindsay)(To Governor)

Adopted Uniform Environmental Covenant Act providing for uniformity of contents and effect of environmental covenants for restriction of land uses for remediated contamination sites. Sponsor worked with KRC to address several concerns and has committed to revisit any remaining concerns in 2006 session.

HR 104 (Richards & Others)(Adopted)

Adopts Rules of Procedure for 2005 Session

HJR 158 (Couch)(H. Rules)(-)

Urges the Congress to enact President Bush’s “Clear Skies” proposal, which would produce less reductions in key air pollutants from major sources than existing law will provide. The initiative is stalled due to lack of support from moderate Congressional Republicans.

HR 178 (Riggs)(adopted)

Commends Cinergy/PSI for installing pollution controls on the Gallagher power plant near Louisville, Kentucky.

HR 179 (Adkins)(H. Floor)

Expresses support and recommends future allocation of $2 million in coal severance tax receipts to support Kentucky Clean Coal Technology Project.

HB 186 (Adkins)

Resolution expressing support for Kentucky Clean Coal Energy Project, a proposal to create a new industry in Kentucky that utilizes large amounts of Kentucky coal to produce zero-sulfur diesel and jet fuel.

By Kentucky Resources Council on 03/05/2005 5:32 PM
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