2022 Legislative Update #2

2022 GENERAL ASSEMBLY REGULAR SESSION BILLS WE’RE WATCHING: THE FIRST EDITION

BILLS AND RESOLUTIONS FOR WHICH KRC HAS TAKEN A POSITION

• While the concept of recycling plastics through the decomplexing of polymers has attracted criticism and the economics of such processing through pyrolysis, gasification, depolymerization, and other processes has not been demonstrated on a commercial scale, KRC believes that adequate controls are in place to assure that those facilities engaged in the processing of waste plastics will remain as regulated “solid waste sites and facilities” and that, with only some 20% of post-consumer plastics being recovered through physical recycling (with the remainder being landfilled, incinerated, or dumped into the environment) that the legal framework for regulating waste management and use of recycled feedstock should remain open to increasing the diversion of post-consumer plastics to new uses with the resulting decrease in virgin plastic production that such use would allow.
• A House Committee Substitute bill is expected containing revisions, including two sought by KRC, that will further strengthen the bill language and will exclude conversion of plastics for fuel as advanced recycling.

• The concept of producer responsibility is a sound one, but framework is problematic.

• The bill imposes penalties in KRS Chapter 224, and while it does not require compliance inspections by the Energy and Environment Cabinet, it is presumed that the agency would enforce the law. It would make more sense for an agency that is already inspecting these establishments on a regular basis to do compliance monitoring and enforcement.

• Recommendations largely track those of the consensus group advising the Pipeline and Hazardous Materials Safety Administration. KRC has requested that the sponsor consider broadening the application to include “hazardous liquids pipelines” as well, and that is under discussion with stakeholders and the sponsor.

• KRC has long supported bottle bill legislation, remembering the words of the Estill County high-schooler who testified to the House Committee that in his years he’d seen plenty of cans and bottles thrown out of cars and trucks along the road but had never seen anyone tossing “nickels and dimes.”

• Further revisions to the process in this area are unwarranted. 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.
• Any effort by the General Assembly to 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.

• The Council appreciates Rep. Kulkarni’s effort to focus legislative attention on the problem of discharges of these “forever chemicals.”
• As noted by EPA Administrator Regan, “[h]armful per- and poly-fluoroalkyl substances (PFAS) are an urgent public health and environmental issue facing communities across the United States.
• PFAS have been manufactured and used in a variety of industries in the United States and around the globe since the 1940s, and they are still being used today.
• Because of the duration and breadth of use, PFAS can be found in surface water, groundwater, soil, and air—from remote rural areas to densely- populated urban centers.
• A growing body of scientific evidence shows that exposure at certain levels to specific PFAS can adversely impact human health and other living things. Despite these concerns, PFAS are still used in a wide range of consumer products and industrial applications.”
• The Council appreciates the approach outlined in the bill, but believes that the timeframe is not reasonable for establishing effluent (discharge) guidelines, given that data on many classes of industrial facilities regarding PFA discharge is lacking.
• KRC would recommend that the bill be rewritten to incorporate the recommendations of EPA’s PFA’s Strategic Roadmap: 2021-2024, including establishing monitoring requirements for all direct and indirect discharges that are known or suspected to be discharging such compounds.
• Also, given that “a relatively modest number of industrial facilities produce PFAS feedstock, and a relatively narrow set of industries directly discharge PFAS into water or soil or generate air emissions in large quantities,” the focus should be on pollution prevention – with a goal of requiring eliminating of any use of the public’s air and water resources for discharges and emissions of PFA and PFOA compounds into the environment unless the facility demonstrates the absence of harm.

1. eliminating evidentiary hearings unless requested by the utility (which would seldom happen),
2. imposing unreasonable limits on intervention timing, as well as on discovery by parties directed to the utility, and
3. allowing a number of utility capital investments to be done by “rider” rather than in a rate case or through a certificate of public convenience and necessity, thus allowing the utility to avoid more rigorous scrutiny of such proposed investments.

• Constitutional scholars largely believe that the scope of such a convention would not be limited to enumerated issues but could become a vehicle for wide-ranging damage to personal liberties and constitutional protections. And there are already constraints on the terms of office of elected officials and members of Congress, which are called “elections.”
• Also found at HJR 17 (Lawrence, Lockett).

• The bill imposes penalties in KRS Chapter 224, and while it does not require compliance inspections by the Energy and Environment Cabinet, it is presumed that the agency would enforce the law. It would make more sense for an agency that is already inspecting these establishments on a regular basis to do compliance monitoring and enforcement.