2004: The Good, the Bad and Ugly

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The Good, the Bad and Ugly  Posted: April 21, 2004


?The Good, the Bad and Ugly”

A Report On Significant Environmental Bills in the 2004 Session

from Tom FitzGerald, Director, Kentucky Resources Council, Inc.


“The Good”


Transmission line siting became subject to a new hearing process under Senate Bill 246. Under current law, new transmission lines constructed by regulated electric utilities are considered to be in the usual course of business and are not subject to local zoning or public review before the state Public Service Commission. Under the bill, construction of transmission lines of 138 kV or higher and more than one mile in length will require a “certificate of public convenience and necessity” from the Public Service Commission. Any interested person, including landowners whose property will be traversed, can intervene in the hearing before the PSC. It is anticipated that the Commission will develop regulations providing the criteria for reviewing proposed transmission lines, including a requirement to consider alternative routing to minimize impacts. After negotiations with utility representatives, KRC supported the bill after receiving commitments from both the utility industry and PSC that such regulations establishing approval criteria would be developed during this biennium.


Net metering of electricity will become available to Kentuckians under Senate Bill 247. The bill requires retail electric suppliers to make available net metering to customers who generate electricity using solar power and wish to sell their excess generation to

the utility for “credits” against electricity use. Each regulated utility must file within 180 days a tariff containing the terms and conditions of their proposed program. The enactment of the bill is a victory for the hard work and persistence of Geoff Young, Joshua Bills and other solar advocates in the state.


Tri-vision billboards will remain banned in Kentucky, with the defeat of Senate Bill 114, sponsored by Senator Ernie Harris. The bill, which would reverse state regulations banning billboards with moving parts and would allow replacement of current billboards with electronic multiple message boards, as well as allowing the cutting of public trees along rights of way in order to assure billboard visibility, was not heard by the House Transportation Committee after having cleared the Senate.


Coalbed methane development will be subject to comprehensive regulation under House Bill 577. Though the original bill developed by a joint coal and oil/gas industry task force and approved by the Fletcher Administration, lacked adequate measures protecting the rights of surface landowners, KRC negotiated several significant changes to the bill, providing for notice to surface and adjoining landowners and state and federal agencies of the application for a permit, submittal of a reclamation plan, a requirement for coordination of permit reviews among agencies, and a requirement for submittal of a groundwater protection plan where the proposed coalbed methane well is within ½ mile of any domestic or residential well.


Surface landowners are better protected from damage caused by coal companies to their lands under amendments to House Bill 537. While KRC believes the law to be unconstitutional, since it creates an “easement of necessity” allowing a coal company onto others’ private property in order to correct violations, the amendments to the law improve the law by requiring that, prior to the coal company entering the land, they provide the landowner with a plan for abating the violation and correcting all damage, and provide proof of insurance.


Both the hazardous waste fund and underground storage tank program eligibility were extended under Senate Bills 222 and 224. The former is a fund that provides state matching money for federal superfund sites as well as funds for state-lead cleanups. The latter is the fund that reimburses for removal and remediation of contamination from leaking underground petroleum storage tanks.


Metro Louisville and the state were urged to get busy by HR 173, passed by the House, which strongly urges Cinergy Corp. and officials at Cinergy’s Gallagher power plant to install best available control technology to reduce sulfur oxides, nitrogen oxides and particulates from the power plant, which is located west of Louisville and is a significant contributor to the air quality problems of the Metro Louisville and downwind areas. The resolution also urges Metro Louisville Air Pollution Control Board and the Environmental and Public Protection Cabinet to evaluate all remedies, including common law remedies, available under state and federal law to assure that the plant is brought into conformity with law and operated in a manner protective of public health safety and welfare.


The 1995 noncoal regulations were restored by HCR 98. Those regulations would have otherwise sunset, leaving no non-coal regulations, after an unsuccessful effort by the Patton Administration to strengthen those regulations during the last interim. KRC 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. HCR 98 also clarified that the 1995 regulations should include rock asphalt mining. The Cabinet has since republished the 1995 regulations as emergency regulations, and they are out for public comment.


A number of bills that were of concern to KRC failed, including:


HB 349, a version of the paint industry’s model lead poisoning model bill, did not emerge from committee at the request of the sponsor. The bill contained many flaws, including a proposal to immunize landlords from liability for lead poisoning under certain circumstances. KRC vigorously opposed the measure and testified in opposition to the bill in committee.


HB 379, which would have provided airport employees with immunity from liability for their negligence responding to “aviation threats”, and was broad enough to excuse such employees from liability for injuries caused by their own actions or inactions, did not receive a hearing at the direction of the sponsor.


Several bills, including SB 10, 68, & 130, sought to preclude local governments from restricting smoking in public accommodations in order to protect public health, or to punish local governments that did enact such measures, did not pass.


SB 89, the perennial “takings” bill, was modified to become a bill simply directing the Attorney General’s office to provide to local and state government a synopsis of the current status of takings law. The bill did not pass.


SB 227, which would delay a formal administrative hearing on solid waste landfill permit expansions until after the permit decision, was not heard. Discussions with the solid waste industry are expected to occur during the interim.


HB 649, which would have required state agencies to establish policies for reducing or waiving civil penalties for violations by “small business” entities, defined as up to 100 employees, was not heard.


And finally, the budget bill, House Bill 395, which was seriously flawed in several respects, did not pass. The bill would have removed millions from several “dedicated” funds in order to support general fund needs, hampering the attainment of the goals of those dedicated funds. Among the funds from which monies would have been diverted were the Petroleum Environmental Assurance Fund (for cleaning up underground petroleum tanks), the Heritage Land Conservation Fund (for acquiring natural areas), the Abandoned Well Plugging Fund (for plugging abandoned oil and gas wells), and the Affordable Housing Trust Fund.


KRC will continue to oppose efforts to divert dedicated fund monies to cover general fund needs where that diversion interferes with attaining the goals for which the funds were raised.


“The Bad”


The 2004 Session saw a number of important or beneficial bills fail, including HJR 196 and SJR 127, which would have required the state Environmental and Public Protection Cabinet to use their existing authority to require submittal of emergency action plans by high and significant hazard impoundments whose failure could cause a loss of life or substantial property damage.


“And The Ugly”


A few ugly bills got through:


SJR 3, a joint resolution requiring that the state Environmental and Public Protection Cabinet take steps to eliminate the northern Kentucky vehicle emissions testing program, was passed. The bill requires the Cabinet to submit an attainment plan for the new 8-hour ozone and particulates air quality standards that do not rely on vehicle testing, but allows reimposition of such a program is necessary for approval of the attainment plan or required by law.


SB 95, special legislation for gun sellers, overrides most zoning restrictions on the location of firearms dealers in areas where other businesses are allowed.


SB 245, a proposed constitutional amendment seeking to ban same-sex marriage or civil unions, and providing that “only a marriage between one man and one woman shall be valid or recognized as a marriage in Kentucky.”


HB 609, touted by the Fletcher Administration as an important bill for small business, provides for review by and a report on regulations from the Small Business Advocacy Commission. There is nothing in current law to prevent that commission or any interested party from reviewing, commenting on and receiving a response from the agency on regulations. The most troublesome aspect of this bill is not that it allows agencies to consider waiving penalties for noncompliance, since that authority already existed in law under appropriate circumstances, but that it creates new procedural steps for publishing regulations that are unworkable and poorly thought out.


By Kentucky Resources Council on 04/21/2004 5:32 PM
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