2022 Legislative Update: #3

The 2022 General Assembly has begun and we at the Kentucky Resources Council are once again tracking environmental, conservation, consumer, energy, and general government bills and resolutions.

 

We will publish this notice on our website weekly throughout the Session with updates on the bills we are supporting, opposing, or tracking.

 

 

There are 42 legislative days remaining in the 2022 Regular Session.
 

This year is a “long” 60-legislative day session and began on January 4, 2022, with an anticipated final day on April 14, 2022.

 

The General Assembly will not be in session on these dates: February 21, March 14, 21, and 28th. Feel free to forward this to anyone you feel might be interested, and to utilize, reprint or quote from the bill analyses. We ask only that you attribute KRC as the source when you use our analytical material (so we can take all the blame for anything we’ve gotten wrong!)

 

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SHARE THESE NOTICES
Feel free to share this notice. If you know someone who would like to be added to this list, tell them to write us at fitz@kyrc.org. The legislative update will be refreshed each Friday afternoon when the General Assembly is in session.

 

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STAY INFORMED DURING THE 2022 GENERAL ASSEMBLY
Find copies of bills, votes, and more at https://apps.legislature.ky.gov/record/22rs/record.html
To find out bill status by phone, call 1-866-840-2835.

Find your legislator at
https://apps.legislature.ky.gov/findyourlegislator/findyourlegislator.html

Find your legislators email at https://apps.legislature.ky.gov/findyourlegislator/findyourlegislator.html
Leave a message for a legislator on the message line
Call 1-800-372-7181 to leave a message for a legislator or an entire committee.
En Espanol, el nombre es 1-866-840-6574.

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• Where KRC has taken a position concerning a bill it is indicated with a plus (+) or minus (-).
• The primary bill sponsor is then listed, followed by its current status of the bill (noted by Committee or chamber).
• If there is no indication of assignment to a committee, the bill has not yet been assigned and remains in the Committee on Committees, where introduced bills and resolutions are initially sent.

 

House Bills
HB 1 (Petrie)(S. A&R)(Under review)
House majority version of the 2022-2024 Executive Branch Budget Bill. Departing from tradition, the House majority introduced a proposed biennial budget prior to the Governor presenting his proposed budget for consideration by the General Assembly. HB 1 represents the House majority proposal for the biennial budget, and will be considered by the Senate, resulting in likely changes that will be resolved in conference and free conference committees comprised of appointed members of the House and Senate.

HB 45 (Bowling, Johnson, Westrom)(H. Rules)(+)
Would modify and include new definitions regarding the processing waste plastics in order to recycle chemicals and monomers in the plastics, sometimes referred to as “advanced” or “chemical” recycling. 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 adopted by the Committee contained two revisions sought by KRC, that will further strengthen the bill language and will exclude conversion of plastics for fuel as advanced recycling, as well as making sure that any facility processing and using the feedstock is subject to Cabinet regulation.

HB 77 (Bratcher)(S. L&O) (+)
Repeal and reenactment with amendments of Kentucky’s Radon Safety program, including revisions in board membership, and increase in cap on fines to $1,000 per occurrence.

HB 108 (Donohue)(+, needs significant revision)
Would authorize the Kentucky Energy and Environment Cabinet to implement a program that internalizes the cost of packaging wastes, to set waste reduction targets and minimum recyclable content standards under an extended producer responsibility designation made by the cabinet, to impose producer responsibility fees to pay for the disposal, recycling, or additional treatment of packaging wastes contributed to the solid waste stream by the producer; emphasize plastic wastes; prioritizing the top ten packaging wastes as under an extended producer responsibility designation; and make other conforming changes. The concept of producer responsibility is a sound one, but framework is problematic.

HB 165 (Tackett Laferty)(+)
Would remove the requirement that an affected employee previously diagnosed with occupational pneumoconiosis resulting from exposure to coal dust must have an additional two years of employment in the Commonwealth wherein the employee was continuously exposed to the hazards of the disease in order to reopen a claim.

HB 166 (Tackett Laferty)(+)
Would eliminate the requirement that physicians contracting with the commissioner of the Department of Workers' Claims to perform evaluations in occupational disease claims be "B" readers who are licensed in Kentucky and are board-certified pulmonary specialists.

HB 189 (Marzian)(H. CC)(+, needs revisions)
Would prohibit the intentional release of more than 25 plastic balloons and phase-in bans on plastic, single-use carryout bags by July 1, 2027 and single-use plastic straws and Styrofoam food and beverage containers by retail food and beverage establishments. 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.

HB 195 (Johnson)(To Senate)(+)
Would create a notification requirement for communities with planning and zoning regarding developments within 660 feet of natural gas transmission pipelines; require a notified pipeline operator to provide pipeline location information to the developer; and require the developer to include language on the final plat filed with the planning commission stating that the developer has utilized reasonable means to notify the pipeline operator and verify the pipeline location. Recommendations largely track those of the consensus group advising the Pipeline and Hazardous Materials Safety Administration. KRC requested that the sponsor consider broadening the application to include “hazardous liquids pipelines” as well, and House Floor Amendment 1 includes that broadening of the bill’s scope to cover anhydrous ammonia, oil, and natural gas liquids pipelines.

HB 222 (Kulkarni, Nemes)(+)
Would protect freedom of expression against strategic lawsuits against public participation (SLAPP suits) by establishing procedures for dismissing legal actions filed in response to a party's exercise of free speech, right to petition, or right to association; allow for an immediate appeal as a matter of right; allow for costs to be awarded to the moving party if dismissal is granted; allow for costs to be awarded to responding party if the motion was found to be frivolous or filed with the intent to delay.

HB 235 (Kulkarni and Scott)(+)
Would establish a Healthy Soils Program and a Healthy Soils Program fund in the Department for Natural Resources, Division of Conservation to provide technical advice and assistance and to assist with soil health assessments and soil health plans; approve applications for grants and other types of financial assistance under the Healthy Soils Program; and require Agriculture Water Quality Authority to promote soil restoration and include an organic agriculture organization among appointments to the authority and add healthy soil practices as a committee and add restoration, biological diversity, watershed health, and healthy soil practices to the purpose of soil and water conservation districts. Bill is too prescriptive in terms of qualifications of Division Director.

HB 295 (Willner)(+)
“Bottle bill” legislation would establish the framework for a beverage container refundable deposit fee program with beverage containers sold or offered for sale in the Commonwealth to have minimum refundable values of 10 cents; and would direct the Energy and Environment Cabinet to submit a study of the feasibility of implementing a minimum recycled content requirement for certain single-use plastic products. 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.”

HB 337 (Hale)(H. L&O)(-)
What would a legislative session be without a bill proposing changes in the administrative regulation process to address regulations found by an interim legislative committee to be “deficient?” Bill would grant an administrative body 10 days to appeal a legislative committee's deficiency finding to the Attorney General; allow the Attorney General 20 days after receipt of the appeal to uphold or overrule the deficiency finding; and would deem a regulation withdrawn or nullified automatically if the appeal is not filed or the deficiency finding is upheld by the Attorney General; authorize the Governor to act on the regulation if the deficiency finding is overruled; prohibit an administrative body from promulgating an identical or substantially similar regulation for at least one year after a deficiency finding was upheld. 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.

HB 338 (Kulkarni)(H. CC)(+, needs revision)
Would require the Energy and Environment Cabinet to promulgate administrative regulations establishing maximum PFAS chemical limits and monitoring requirements for drinking water provided by public and semi-public water systems and maximum PFAS chemical limits and monitoring requirements for discharges into the waters of the Commonwealth; require that maximum PFAS chemical limits be designed to protect public health and be updated; provide that nothing in the section interferes with the Energy and Environment Cabinet's responsibilities under the federal Water Pollution Control Act or the Safe Drinking Water Act. 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.

HB 341 (Gooch)(H. CC)(-)

Would amend existing law to allow PSC-regulated utilities to file “streamlined” procedures for rate cases if a full rate case had been filed within the preceding 5 years. Bill would severely curtail utility accountability in such ways as (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. KRC will be talking with the sponsor about the adverse effect of many of these changes. At a time of significant increases in utility rates for electricity, natural gas, water, and wastewater, more rather than less scrutiny and accountability is needed.

HB 342 (Hatton)(H.CC)(+)
Would include affordability when determining fair, just, and reasonable utility rates; require affordable, fair, just, and reasonable rates to balance the interests of the utility, its investors, and the ratepayer.

HB 361 (Hart)(H CC)(-)
Would make water fluoridation programs optional; and allow the governing bodies of water systems subject to regulation by the Cabinet for Health and Family Services to decide whether they participate in water fluoridation programs. Fluoridation is recognized as among the most effective public health initiatives.

HB 392 (Branscum and others)(H. CC(+)
Similar to Senator Hornback’s bill, this bill would amend and update statutes governing Kentucky State Board on Electric Generation and Transmission Siting to include decommissioning requirements within the requirements over which local planning and zoning requirements shall have primacy; to require that a decommissioning plan be included in an application for construction of a merchant electric generating facility; establish minimum requirements for a decommissioning plan; require as part of a decommission plan that a bond or similar security be secured to assure that the decommissioning plan is accomplished; establish requirements for how the bond is set and how the beneficiaries of the bond are to be determined; require that certain components of the decommissioning plan be incorporated into the construction certificate applicant's leases with landowners; to include whether the decommissioning plan complies with the requirements of the Act in the criteria for approval of a construction certificate for a merchant electric generating facility; require a person that has received a construction certificate for a merchant electric generating facility file with the board the copy of the bond or similar security no later than the date that construction commences for the facility; require that an updated copy of the bond or similar security be refiled at least once every five years thereafter; require notice to be filed with the board when the construction of the merchant electric generating facility is complete and has begun producing electricity for sale; require that notice be given of any transaction involving the sale or transfer of ownership of the facility to the board and local officials within five days of finalizing the transaction; require a person who has acquired a merchant electric generating facility to file with the board written consent to assume the obligations in the decommissioning plan for the facility and to adopt or replace the required decommissioning bond; amend KRS 278.718 to provide that an ordinance, permit, or license issued by a local government shall have primacy over the requirements of KRS 278.700 and Sections 2, 3, and 4 of this Act.

HB 395 (Massey and others)(H. CC)(Under review)
Comprehensive revision to state Department of Fish and Wildlife agency statutes.

House Resolutions
HJR 4 (Lockett and others)(-)
Would apply to Congress under the provisions of Article V of the Constitution of the United States for the calling of a convention of the states limited to proposing amendments to the Constitution of the United States that impose fiscal restraint on the federal government, limit the powers and jurisdiction of the federal government, and limit the terms of office for its officials and members of Congress. 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).

HR 34 (Scott, Kulkarni, Stevenson)(+)
Simple resolution honoring the life and legacy of Dr. Martin Luther King, Jr.

HR 38 (Tackett Laferty)(+)
Simple resolution honoring Eula Hall and recommending that consideration be given to placing her statue in the Capitol Rotunda.

HR 39 (Stevenson, Scott) (+)
Simple resolution would recognize the last day of February, the day connecting Black and Women's History Months, as a day to honor Black women.

HJR 42 (Upchurch and others)(H. Veterans)(+)
Would grant the family of the last remaining World War II veteran in Kentucky, upon his or her passing, the option of the veteran to lie in state in the Capitol Rotunda and receive a funeral with full military honors.

HCR 47 (Frazier Gordon)(+)
Would encourage school districts to buy foods locally for school meals.

HR 49 (Bratcher, Kulkarni)(+)(Adopted)
Recognizes January 27, 2022, as International Holocaust Remembrance Day.

Senate Bills
SB 28 (Girdler, Hornback, Adams, Meredith, Parrett)(S. NR Energy)(-) Would allow a utility to grant free or reduced rate service to any commercial food production operation that produces food items intended for human consumption, subject to the Public Service Commission approval of the tariff. KRC is concerned that allowing an exemption or preferential rate for one subclass of customers will shift those costs to other ratepayers, since the costs will have to be paid.

SB 41 (Harper Angel)(S. NR Energy)(+)
Would prohibit the intentional release of more than 25 plastic balloons and establish phased-in bans on plastic, single-use carryout bags and on provision of single-use plastic straws and Styrofoam food and beverage containers by retail food and beverage establishments. 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.

SB 52 (Hornback)(S. A&R)(Under review)
Would require a $100 per acre state conversion charge on land which has been converted from agricultural or horticultural to any other use and require the charge to be deposited into the agricultural enhancement fund.

SB 69 (Hornback)(S. NR Energy)(+)
Would make several amendments to the Kentucky Electric Generation and Transmission Siting Board in order to address siting of merchant (non-utility) solar and other electric generating facilities. KRC has been negotiating with other stakeholders and has been assisting the sponsor with several recommended amendments to the bill. Among the provisions of the “current” are bill are amending the threshold for what constitutes a merchant power plant to include facilities that occupy in aggregate 10 acres or more of land; change the definition of "commence to construct" so that site clearing and excavation work satisfy the commence to construct requirements; establishing setback requirements for solar merchant electric generating facilities of 50 feet from the property boundary of any nonparticipating adjoining property and 100 feet from a residence on any other property than the one on which the facility is to be located unless waived in writing; provide exceptions; require that before exercising an option to acquire any interest in real estate in a county that a merchant electric generating entity notify the heads of local government entities of jurisdiction; allow the local officials or the commission to request a public hearing on the proposed merchant electric generating project; require ongoing notification of changes to the project from the merchant electric generating entities to local officials; remove outdated language; require the site assessment report submitted by a person proposing to construct a merchant electric generating facility to include a decommissioning plan to explain in detail how the facility and its components will be removed at the end of their useful lives; require the decommissioning plan to be reviewed as needed, but at least once every 5 years; establish minimum requirements for the decommissioning plan; amend KRS 278.710 to require the application for the construction certificate of a merchant utility generating facility to be denied until the applicant can provide documentation of compliance with all local planning and zoning requirements that existed on the date that the application was filed; include whether the proposed decommissioning plan is in the public interest as a criterion for application approval; authorize the merchant utility siting board to require the decommissioning plan to be amended to ensure that it is in the public interest; provide that the construction certificate holder and any of its successors in interest shall be required to comply on an ongoing basis with all conditions of its application approval, subject to enforcement in Franklin Circuit Court; require that prior to the commencement of construction, the holder of a construction certificate for a merchant electric generating facility shall furnish bond or other similar security to assure the decommissioning of the facility at the end of its useful life; establish the procedure for setting the bond amount; provide for review of the bond amount as needed but at least once every 5 years; provide which entities will be named as beneficiaries of the bond depending on the circumstances; require that the bond be forfeited unless the person responsible for completing the decommissioning plan begins work on the plan within 12 months of the date that the facility ceases to produce electricity for sale and completes the work within 18 months of that date; require that any forfeited bond amounts only be used to decommission facilities on the properties for which the bond was posted; require prior authorization for any transfer of control of a merchant electric generating facility; define "control" and the circumstances under which control will be considered to be transferred and the conditions for approval; require a decision to be made on the approval of the transfer of control within 90 days of the application, except that an additional 60 days may be taken for good cause shown; require that notice of an application for approval of transfer of control of a merchant electric generating facility be given to local government officials for where the facility is located; provide that the requirements of the Act shall apply to all new and current applicants for construction certificates for merchant electric generating facilities whose applications have not been approved prior to the effective date of the Act.

SB 78 (McDaniel)(S. Veterans)(+)
Would require the Department for Facilities and Support Services within the Finance and Administration Cabinet to place a statue of United States Navy diver and Kentucky native Carl Brashear in the Capitol Rotunda.

SB 118 (Smith and others)(S. CC)(-)
Would require the Energy and Environment Cabinet to update and study the state assumption of the Section 404 permitting program under the Clean Water Act. KRC, which participated in the last assessment of whether the state should seek to assume the Section 404 program, does not oppose reconsideration of state assumption of the program, which is intended to avoid, minimize, and mitigate impacts to “waters of the United States” from the placement of dredged or fill material. KRC does, however, have a number of concerns regarding provisions of the bill that would affect permit issuance under the KPDES pollutant discharge permit program. The requirement to create a tracking system for the status of permits is largely duplicative of existing on-line tracking and calls for creation of an “online portal” that is intended to facilitate more rapid transmittal of information needed to address administrative and technical deficiencies in permit applications, but which exempts from the Kentucky Open Records Act for information submitted by a permit applicant on that portal. Such an exemption is unjustified, and inconsistent with the disclosure requirements associated with the existing delegated programs under the Clean Water Act. The other considerations are that if the program is delegated to the state, the requirements of the National Environmental Policy Act with respect to Environmental Impact Statements and Environmental Assessments are no longer applicable (in the absence of “federal action”) and there would no longer be a "public interest review," which is a separate filter through which the Corps looks at its permitting actions, and which can result in permit denial even where technical compliance with the 404 requirements of avoidance, minimization, and mitigation is demonstrated. There is also a question of whether consultation would continue to be required under the Endangered Species Act, which applies to federal “undertakings.” Delegation could be made contingent on such consultation continuing, but that is not certain. KRC will talk with the sponsor about revising the bill to eliminate duplication with existing Cabinet tracking, to remove any exemption from disclosure of permit-related information provided to the Cabinet, and to provide an environmental review comparable to NEPA and the Corps’ “public interest” review.

Senate Resolutions
SJR 24 (Meredith)(S. Judiciary)(-)
Joint resolution applying for an Article V convention to propose an amendment to the Constitution of the United States to set a limit on the number of terms of office for members of Congress. 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.”

SR 74 (McGarvey, Berg)(+)(Adopted)
Recognizes January 27, 2022, as International Holocaust Remembrance Day.

SR 76 (Wise)(+)(Adopted)
Expresses sympathy to the citizens of the Commonwealth affected by the historic December 2021 tornado outbreak and honors the many acts of kindness provided to the impacted communities and school districts by school personnel.

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