Legislative Update #10: 2004 Regular Session - Bills We're Watching

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Legislative Update #10: 2004 Regular Session - Bills We're Watching  Posted: March 19, 2004

Kentucky Resources Council, Inc.

Post Office Box 1070

Frankfort, Kentucky 40602

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March 19, 2004


2004 REGULAR SESSION: Bills We're Watching

Legislative Update #10


This list profiles the significant environmental, conservation, consumer and general government bills that are being tracked by the Council during the 2004 session. This is the tenth update. 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 toll phone number to reach a legislator in person is 502-564-8100. The toll-free bill status line is 1-866-301-9004. 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.




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 6, 2004, the General Assembly convened in Frankfort for the regular "long" legislative session. During the first eleven weeks of this 16-week session, a number of bills relating to the environment have been filed. The General Assembly will be in session until adjournment on April 13.


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 sponsor and current status of the bill are also noted by Committee or chamber.


SB 1 (Williams)(House Elections & Const. Ams.) (-)


SB 1 would amend the Kentucky Constitution to allow the General Assembly to impose limits on the amount of punitive and noneconomic damages that a jury could award a person injured through medical malpractice, and would empower the General Assembly to mandate alternative dispute resolution for claims of medical malpractice. In a successful effort to attract one additional Democratic vote needed to pass the amendment, the Senate amended the bill to provide a base of $250,000 in punitive or exemplary damages below which the General Assembly could not cut off awards.


Kentucky's Constitution protects against legislative limitation those rights of action available to persons injured through the tortuous conduct of another. Section 14 of the Kentucky Constitution guarantees that "All courts shall be open, and every person for an injury done him in his lands, goods, person or reputation, shall have remedy by due course of law, and rights and justice administered without sale, denial or delay."


KRC opposes any amendment that would seek to stem jury awards by artificially limiting or eliminating, for any class of injuries and for the benefit of one class of persons, the right of any person to bring a civil action and to seek a jury trial for compensatory or punitive damages for injuries sustained. Appellate mechanisms within the judiciary already exist to assure that punitive damages bear a reasonable relation to the conduct of the negligent party.


SB 2 (Williams)(House Transportation)


Comprehensive revisions to transportation planning process, increasing legislative oversight and further restricting use of non-competitive bids.


SB 33 (Karem) (S. Judiciary) (+, amendment needed)


Empowers agencies, in their discretion, to employ alternative dispute resolution (mediation, facilitation, collaborative problem solving, consensus buildings, and regulatory negotiation) to resolve disputes (including facility siting, comprehensive planning, growth management, environmental cleanup, and infrastructure design).


While KRC supports appropriate use of voluntary ADR, language is needed to assure that the employment of ADR does not override or compromise existing requirements for prompt enforcement of environmental laws and regulations.


SB 34 (Tapp) (H. Rules)


Creates licensing process and oversight board for those engaged in “home inspection.”


SB 37 (Boswell) (H. Rules)


Agency revisions to existing statutory provisions relating to electrical equipment and mine safety.


SB 49 (Roeding) (Recommitted to S. A&R)


Exempts from open meeting and open records laws disclosure of information relating to airport security, government communications systems, hospital terrorism response plans, security plans for public and private facilities, and utility security plans. The latter provision needs clarification to assure that disclosure currently required under state and federal laws relating to storage and use of hazardous materials by industrial and commercial facilities, and facility siting laws, is not abridged.


SB 77 (Harris) (H. Rules)


Bill confirms reorganization within Department of Agriculture and change of names of several Division to reflect increased environmental emphasis.


While KRC does not oppose the bill, KRC would oppose any transfer of regulatory functions over water quality, floodplain management, waste or air pollution related to agriculture, (including industrial feedlot operations) from the Environmental and Public Protection Cabinet.


SB 89 (Roeding) (H. Judiciary, posting waived) (+)


As initially introduced, SB 89 was a problematic bill seeking to hamstring government action to protect the public and environment by requiring “takings assessments.”


A Senate Committee substitute, drafted by KRC, replaced the bill text with a requirement that the Office of the Attorney General develop a guidance document, to be available to state and local government, which summarizes the current state of federal and state takings law. Such guidance would be helpful to local governments, particularly planning and zoning commissions, in determining when zoning restrictions may trigger concerns regarding regulatory or physical takings.


SB 95 (Robinson) (H. Local Govt, posted)(-)


Bill would prevent local planning and zoning agencies from restricting the location of firearms dealers, importers or manufacturers in any place where any other business may locate.


KRC opposes this type of special legislation intended to provide any business preferential status to avoid reasonable restrictions on siting and operation of businesses within commercial, residential and industrial zones in a community. Existing constitutional and statutory due process protections exist to prevent arbitrary or capricious governmental zoning and planning decisions relative to commercial and industrial activities.


SB 114 (Harris) (House Transportation) (-)


Creates process for cutting trees in public rights-of-way along highways in order to assure billboards access to motorists on public highways. KRC believes it inappropriate to allow private parties to appropriate and destroy public trees and vegetation in order to assure that motorists can view their billboards.


Bill also reverses current state regulatory prohibition on multiple message (tri-vision) signage, which are more distracting to the motoring public and present greater negative visual and light impact.


SB 118 (Guthrie) (To Governor)


Removes current restriction prohibiting electric coops from selling power to entities other than state and local governments.


SB 130 (Seum) (Recommitted to Senate A&R)(-)


Prohibits local government regulation of smoking in private buildings other than requiring posting of smoking policies.


SB 142 (Buford)(H. Floor)


Extends jurisdiction of Airport Zoning Commissions to include private airports with a paved runway of greater than 2,900 feet.


SB 154 (Kelly) (H. Floor)


Reorganization bill amending various statutes to combine natural resources, environment, labor and public protection into Environmental and Public Protection Cabinet.


SB 179 (Westwood) (H. Health and Welfare, posted) (+, with reservations)


Bill introduces a new Fletcher Administration initiative, creating a new Commission to develop an action plan to improve public health. Unfortunately, the findings and goals fail to include ending childhood lead poisoning – a public health initiative that should be among the highest priorities. Senator Westwood has indicated that while the administration does not want to amend the priorities in the bill, he will push to include a focus on childhood lead poisoning when the commission begins its work.


SB 197 (Westwood) (H. Local Govt, posted)


Amends existing law governing powers and purposes of sanitation districts to include stormwater management. Sponsor agreed to two clarifying amendments proposed by KRC that were added as floor amendment.


SB 222 (Harris) (+) (Passed both Houses)


Extends assessment of hazardous waste fee to fund state superfund, from June 2004 until June, 2006.


SB 224 (Harris) (+) (Passed both Houses)


Extends deadlines for registering tanks for reimbursement for corrective action under the state underground storage tank program.


SB 246 (Stivers) (H. Tourism, Dev. & Energy)(+)


The bill was proposed by regulated utilities to provide (with certain exceptions) for a hearing before the Public Service Commission on proposals to extend transmission lines of 138 kV or higher and longer than a mile in length, and for issuance of a certificate of public convenience and necessity by the PSC. Currently, such transmission line extensions are typically considered to be in the usual course of business and no certificate of public convenience and necessity is required.


Providing a new hearing right is an improvement, and while the bill sets no standard for review, the PSC has indicated that they do have the authority under this bill to consider matters that the PSC has traditionally held to be outside their jurisdiction - environmental quality, property values and scenic values.


SB 247 (Harris) (H. Tourism Dev. & Energy)


Bill provides for net metering of electricity by generators of solar energy and provides that each utility regulated by the PSC file a tariff within 180 days of passage of the bill. Any net generation from the eligible customer produces a credit against future electricity use, not cash refund.


SB 263 (Guthrie) (S. Ag NR)(+)


Senate Counterpart bill largely tracks the consensus HB 577, establishing a comprehensive regulatory program governing coalbed methane development, but adds two strengthening changes that have been agreed to by coal and oil/gas interests – a provision allowing the Department to increase the level of individual and blanket bonds, and a requirement to maintain insurance to compensate for damage caused by the operations. KRC supports this consensus bill, as it supports HB 577GA.


Senate Committee amended HB 577 to include provisions from SB 263, and it is anticipated to find support in the House.


SB 271 (Leeper) (S. A&R) (+)


Bill modifies existing laws to extend available economic incentives (in the form of tax credits and tax moratoriums) for property redevelopment to include “brownfields” properties.


SR 1 (Williams) (Passed)


2004 Senate Rules of Procedure.


SJR 3 (Roeding) (-) (H. Rules)


Bill mandates termination of vehicle testing program for northern Kentucky counties by November 1, 2004. Resolution was amended to require REPA approval prior to closing vehicle testing program. KRC believes as a matter of public policy, failing to include vehicle emissions testing in the array of ozone precursor reduction measures is unwise.


SR 79 (Seum) (Senate Floor) (-)


Resolution supporting Metro Louisville in its effort to obtain EPA approval for revision to air quality plan eliminating vehicle testing program. KRC believes that a modified vehicle testing program remains a necessary and cost-effective component of a multi-sector air quality improvement plan.


SJR 127 (Jones)(S. Ag NR) (++)


Counterpart to Rep. Webb’s HJR 196, and one of the most significant of the 2004 session environmental bills. Filed as a result of the grassroots work of coalfield citizens, this resolution would direct the Environmental and Public Protection Cabinet to require development by owners of impoundments presenting a potential high or significant hazard to downstream life or property, of emergency action plans meeting the guidelines of the Federal Emergency Management Agency. Only 1% of Kentucky’s high and significant hazard dams have such plans, placing Kentucky among the states with the lowest compliance level.


HB 1 (Richards) (S. State & Local Govt)


Revisions strengthening aspects of the Executive Branch Ethics Code


HB 8 (Yonts) (S. Ag. NR)


Counterpart to SB 37; agency bill revising provisions of mine safety laws relating to electric equipment.


HB 94 (S. State & Local Govt)


Bill allows joint sponsorship of bills introduced in both chambers.


HB 109 (Meeks) (H. Floor) (+)


Bill creates several mechanisms to encourage increased use and development of interlocal agreements for sharing and providing governmental services by counties and special districts.


HB 112 (Nunn) (H. Floor with committee substitute)


Revisions to state law governing use and filing of assumed names by corporations and other business entities.


HB 127 (Belcher) (Recommitted to H. Ag. & Sm. Business) (+)


Creates Pest Plant Board to foster public awareness and coordinate government effort to eradicate noxious invasive plant species.


HB 132 (Webb) (S. State & Local Govt) (+)


Bill modifies standards for licensure and continuing education for building and plumbing inspectors to require education and training on prevention, detection and remediation of mold and other indoor toxins.


HB 145 (Hoffman) (H. Floor with committee sub) (+)


Requires radon mitigation systems to be installed in all new schools, daycares and homes constructed in high-radon areas (as determined by the Cabinet for Health Services); allows local governments to require radon mitigation systems in other areas after one year, and allows an income tax credit for the costs of installed systems.


HB 148 (Burch) (S. State & Local Govt) (+)


Restricts sale of junk food (high sugar, fat) in schools during school day; provides for continuing education for school food service directors and cafeteria managers.


HB 167 (Meeks) (S. Floor) (+)


Creates Kentucky Native American Heritage Commission attached to Education, Arts and Humanities Cabinet to foster awareness of influences of Native Americans in Kentucky’s history and culture.


HB 188 (Weaver) (S. Veterans & Mil. Affairs)(-, needs amendment)


Amends state open records law to allow exemption from disclosure of records that are determined by the Office for Security Coordination to pose threat from terrorism. Language remains too broad, potentially allowing exemption from disclosure of information on hazardous materials storage and use that is required to be made available to local emergency response agencies and to the public.


HB 191 (Gray) (To Senate)


Directs emplacement of state recreational and cultural interest signage along certain western Kentucky highways to promote Barkley and Kentucky Lakes.


HB 199 (Ballard) (S. Floor)


Bill clarifies standards for definition of what constitutes a public road and for acceptance of roads into county road system.


HB 202 (R. Adams) (S. Floor, consent)


Bill requires that where one entity furnishes sewer services to customers of another sewer utility, compensation shall be paid by agreement or under eminent domain law. Eminent domain powers are granted to local governments for sewage treatment facilities, and surcharges are allowed to recover the compensation paid in taking over the facilities.


HB 240 (Moberly) (H. A&R, posting waived)


Reaffirms that provisions in budget bill have force and effect of law and may substantively amend and alter provisions of other state laws.


HB 253 (Burch) (S. Veterans & Mil. Affairs) (+)


Adds Commission on Fire Protection Personnel Standards to Kentucky Emergency Response Commission.


HB 261 (Feeley) (S. Veterans, Military Affairs) (+)


Restricts sale of soda to school children during school day.


HB 281 (McKee) (S. Ag NR)(+, amendments needed)


Recreates Interagency Farmland Committee to review state agency projects converting more than 50 acres of farmland for non-farm use or for acquisition of more than 50 acres of farmland by government, and requires development of an agricultural impact statement and consideration of alternatives.


KRC supports elevating consideration of farmland conversion to nonfarm use, but believes that the process of review and consideration of alternatives should be expanded to include all projects undertaken, funded or approved by state agencies that convert more than 50 acres of farmland to non-farm use, including transportation, other infrastructure, facility siting, subdivision and other large-scale developments funded or approved by state government.


HB 289 (Geveden) (S. State & Local Govt) (+)


Act establishing process for consolidation of counties by voters of those counties.


HB 295 (Bruce) (Became law) (-)


Bill voids all regulations identified as deficient by the Administrative Regulation Review Subcommittee or other committees during the 2003 interim, including the needed revisions to state non-coal mining regulations. KRC believes that each set of regulations so identified should receive full review by the committees of jurisdiction rather than considering one bill voiding all such identified regulations.


HB 301 (McKee) (H. Floor)


Directs disbursement of unobligated funds in waste tire trust fund to grants for projects to manage waste tires, giving first priority to funding waste tire crumbing projects for use on athletic field surfaces.


HB 320 (Nunn) (H. Rules)


Extends oversight of government contracts review process to include personal service and other contracts of numerous quasi-governmental corporations.


HB 336 (R. Thomas) (To Senate)


Amends existing law concerning animal control, including banning use of gunshot as method of animal euthanasia.


HB 369 (Collins) (S. Ag NR) (-)


Original bill created unworkable 15-day timeframes for processing, review, and approval or denial of permits for on-site sewage systems by both local health departments and the state Environmental and Public Protection Cabinet. After discussions with Rep. Collins suggesting that “working days” rather than calendar days would give the agencies a more reasonable time to process applications, the bill was amended in committee to provide a 15 working day timeframe. KRC has grave concerns with language added to bill on House Floor that directs issuance of a permit, rather than issuance or disapproval, suggesting that all permit applications must be approved irrespective of whether the proposed on-site system is appropriate for the property’s limitations.


HB 388 (Wayne & Riggs)(S. State & Local Govt) (+)


Requires planning commissions and boards of zoning adjustment to adopt codes of ethics, and increases training requirements for planning and zoning officials. Requires, for all counties except Metro Louisville, that planning commission empanel an advisory group consisting of Chamber of Commerce, School District, taxing District and utility representatives to assist in reviewing and updating comprehensive plans.


KRC supports the provisions concerning adoption of ethics codes. At KRC’s request, the list of contacts that local governments are directed to make in preparing and revising comprehensive plans was amended to include representatives of neighborhoods, conservation interests, historic preservation and other entities.


HB 395 (S A&R)


Executive Branch Budget for FY 2004-06. KRC’s testimony is available on the KRC website.


House Floor Amendment #1 is problematic, since it includes new language allowing the Secretary of the Environmental and Public Protection Cabinet to reprogram money out of the dedicated underground storage tank fund – a fund that has already suffered in its goal of reimbursement for removal of underground tanks, from past removal of millions of dollars from the dedicated fund by the General Assembly.


HB 423 (Callahan) (H. Floor)


Requires 25 cents of the reimbursement from inspection/maintenance program contractor to state to be paid to the county clerk for each registered vehicle.


HB 444 (Denham) (Recommitted to Judiciary)


Bill limits liability of persons who own agritourism operations where the public is not charged a fee for entry onto the land. Bill tracks existing KRS 411.190(2), which limits liability of landowners whose land is open for recreational activities.


HB 483 (Wilkey)(S. A&R) (+)


Bill would provide repayment assistance for law school student loans for lawyers making a 2-year commitment to legal aid, public advocacy, commonwealth or county attorney position; would be funded by reprogramming 2% of court costs now returned to general fund.


HB 490 (Wayne) (S. Ag NR)(+)


Bill provides for “net metering”, requiring retail electric suppliers provide net metering for eligible customer-generators of electricity. Net metering allows excess electricity produced by customers to be introduced into the system and for a “netting” of the value of the electricity used by and transmitted from such a customer.


HB 537 (B. Smith) (To Senate)


Amends right-of-entry statute allowing coal mining operation that has damaged another’s property to obtain a right to enter that property without the consent of the landowner in order to abate a notice of violation issued by state. Bill is likely to be considered by any reviewing court as an unconstitutional taking by physical intrusion.


Sponsor has agreed to include two amendments – one requiring that the coal company carry insurance and supply a plan to the landowner for remedying the damage, and the other, clarifying that accepting the appraised damages does not waive a right to sue for punitive or compensatory damages or to seek other appropriate relief. With those changes, while KRC opposes existing law, KRC will be neutral on the bill. KRC has pending in Pike Circuit Court an action that challenges the constitutionality of the law.


HB 559 (Meeks) (To Senate)


Allows voluntary tax check off for local government cemetery maintenance fund.


HB 560 (Meeks) (To Senate)


Reforms existing law governing access to private cemeteries, establishes process for reinterment and disposal of human archaeological remains in custody of government, requires permits for persons excavating archeological remains.


HB 577 (Buckingham) (S Floor) (+)


Bill creating comprehensive regulatory program for production of methane gas from wells drilled into coalbeds (Coalbed Methane or “CBM”). Original bill lacked safeguards for surface landowners and environment, but after negotiations, provisions were incorporated into committee substitute providing for surface and adjoining owner notification, development of reclamation plan and obligation to reclaim and restore any improvements damaged; requirement to submit groundwater protection plan if methane well is within ½ mile of domestic or residential well, and coordination of permits with environmental agencies. KRC has indicated support for the amended bill. Uncaptured methane vented into the atmosphere is a potent greenhouse gas, and advance capture of methane improves underground mine safety. For more information on the original and amended bill visit KRC’s website at www.kyrc.org.


HB 581 (P. Clark) (H. Judiciary, posted)


Bill requires Attorney General to develop guidelines to be followed by all state and local governments regarding regulatory takings of private property. Bill misstates standard for when government regulatory action constitutes a “taking” of property. Reductions in value of private property incident to governmental regulation do not effect a taking necessarily.


KRC has drafted substitute language that incorporates the concept of the Office of the Attorney General developing a guidance document that will be available to local and state agencies summarizing the current jurisprudence on takings law, and that is expected to be incorporated as a committee sub if this bill moves forward. See also SB 89, which incorporates the KCR language.


HB 596 (Denham) (S. Transportation)


Revises law on covered wooden bridge authority to involve Kentucky Heritage Council in development of management standards for preservation, maintenance and restoration of covered wooden bridges.


HB 609 (Thomas and Comer) (S. Eco Dev, Tourism & Labor)


Bill revises statutes addressing administrative regulations, to provide for a report on proposed regulations by the Commission on Small Business Advocacy; to require that the economic impact analysis accompanying proposed regulations specifically consider impacts on “small business” (defined as 150 employees or gross sales of less than 6 million dollars), and allowing agencies to consider waiving fines or penalties (rather than simply reducing or modifying) as part of the tiering of regulations.


While there are aspects of the bill that KRC does not object to, there is no need for a new statutory requirement of a small business commission report, since any party, including government and quasi-government entities, as well as commercial and industrial trade groups, can already file comments on proposed regulations. The bill has significant technical problems, including unworkable timeframes.


HB 626 (Pullin)(To Senate)


Administrative regulation housekeeping bill, making several clarifications concerning deadlines for public comment, regulation filing, and other related matters relating to the legislative review of proposed regulations. Bill includes positive clarifications concerning comment period length and receipt of proposed regulations by e-mail.


HB 639 (Hall & Pullin) (H. Floor)(+)


The House counterpart to SB 246 (Stivers).


HR 3 (Adkins)(Adopted)


2004 House Rules of Procedure


HCR 8 (Vincent) (S. Floor)


Directs establishment of a task force to examine the development of the Lexington/Big Sandy Rail Trail.


HJR 43 (Denham) (S. State & Local Govt)


Resolution urges Transportation Cabinet to continue to work with other agencies to develop signage program for agritourism events.


HCR 98 (Gooch) (Passed both Houses, to House for concurrence in Senate amendment)


Resolution would reinstate the 1995 noncoal regulations, which will otherwise sunset after an unsuccessful effort by the Patton Administration to strengthen those regulations during the last interim. KRC does not oppose this resolution, but will seek during the next interim to secure improvements in the regulation of noncoal blasting, impacts of noncoal mineral haulage, and groundwater protection from noncoal operations.


Amended in the Senate to clarify inclusion of rock asphalt mining under the 1995 regulations.


HCR 106 (To Senate) (+)


Encourages electric utilities to cooperate with each other to meet reliability needs without new power lines, and encourages transmission-owning utilities to hold local hearings on any new high-voltage transmission lines.


HCR 114 (Denham) (S. Ag NR)


Concurrent resolution urges the state Division of Conservation to give greater consideration to previous unsuccessful applicants for soil erosion and water quality cost share monies.


HR 124 (Pasley) (S. Transportation)


Resolution extending the reporting deadline for the Off-Road Motorcycle and All-Terrain Vehicle Task Force until September 2005.


HCR 190 (R. Adams) (S. State & Local Govt)


Reauthorizes the task force for funding wildlife conservation.


HJR 196 (Webb) (H. NR & Env)(++)


One of the most significant of the 2004 session environmental bills, and filed as a result of the grassroots work of coalfield citizens, this resolution would direct the Environmental and Public Protection Cabinet to require development by owners of impoundments presenting a potential high or significant hazard to downstream life or property, of emergency action plans meeting the guidelines of the Federal Emergency Management Agency. Only 1% of Kentucky’s high and significant hazard dams have such plans, placing Kentucky among the states with the lowest compliance level.


HCR 202 (Hall) (Senate Floor)(+)


Resolution urges federal Office of Surface Mining and state surface mining agency to encourage reforestation initiative for promoting reforestation of mined lands through use of rough grading and reducing over-compaction of reclaimed areas.


HJR 218 (Nesler) (To Senate)


Reauthorizes the Kentucky Aquaculture Task Force.


HR 228 (Buckingham)(Adopted by House)


Simple resolution urging the Secretary of the Commerce Cabinet to develop and promote the use of coalbed methane.


HB 244 (Meeks)(H. Floor) (+)


Urges state Department of Fish & Wildlife resources to avoid killing elk and other protected and reintroduced animals and to mediate disputes concerning migration of such animals onto private property.



By Kentucky Resources Council on 03/19/2004 5:32 PM
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