2023 Legislative Update #3

The 2023 General Assembly is underway! We at the 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.

This summary is complete through end of legislative day 12, February 17, 2023.

This year is a “short” 30-legislative day session with an anticipated final day on March 30, 2023.

• There are 18 legislative days remaining in the 2023 Regular Session.
• The General Assembly will not be in session on February 20, 27 and March 6th.
• March 15 and 16 are set aside as “concurrence” days, and there is a “veto” recess from March 17 through 28th before the General Assembly reconvenes on March 29 and 30th to consider any vetoes of bills and to finish work on bills and resolutions prior to adjournment sine die.

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KRC 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 mischievous amendments.

We have formatted this update to highlight in the first section, those bills on which KRC has taken a position.

• 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).

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BILLS & RESOLUTIONS FOR WHICH KRC HAS TAKEN A POSITION 

HOUSE BILLS

HB 4 (Branscum and others)(H. A&R)(+/-, needs revisions)
Bill would revise the current statutes on the Kentucky State Board on Electric Generation and Transmission Siting.

Numerous provisions would be added or amended, including those regarding the term of the ad hoc members appointed to the Board, and decommissioning plan and bond requirements. Revisions are needed to assure the adequacy of decommissioning bonds to fully assure decommissioning in the event of operators default, and to fully protect landowners during the decommissioning process. KRC will talk with the sponsor and other stakeholders to try to secure needed improvements.

HB 40 (Lewis, 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 in plain conflict with the separation of powers doctrine under Sections 27 and 28 of the Kentucky Constitution, would nullify any regulation found deficient by a legislative committee unless the agency appealed that finding to the Attorney General’s office within 10 days and the AGs office overruled the finding.

In addition to the unconstitutionality of granting interim legislative committees veto power over a regulation, the bill is a solution in search of a problem. 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 66 (Willner)(H. CC)(+)
Would regulate disconnection of electric and gas service by PSC-regulated utilities, including creating winter and summer temperature standards to prohibit disconnection of service by retail electric and gas utilities; establish a certificate of need for persons who are at risk if utility service is disconnected; prohibiting disconnection of service on holidays and weekends and before 8 a.m. and after 5 p.m. on weekdays; allowing for reconnection of service for partial payment with a payment plan; waiving fees for customers having obtained a certificate of need; require utility to make reasonable effort towards reestablishing service for a customer terminated after having obtained a certificate of need, and making other reforms.

HB 74 (Hart and 17 others)(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.

Consistent with KRC’s historic position, KRC believes that fluoridation meeting state and federal standards, as a tool for advancing oral hygiene, is recognized as among the most effective public health initiatives.  Further, any issues pertaining to state water fluoridation should be addressed administratively through the Cabinet for Health and Family Services.

HB 94 (Kulkarni)(H. CC)(+)
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; require the 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.

HB 96 (Kulkarni)(H. CC)(+)
Would establish the Kentucky Urban Farming Youth Initiative to promote farming to youth in urban counties in urban University of Kentucky Cooperative Extension Service offices.

HB 140 (Raymond)(H. CC)(+)
Proposed constitutional amendment to establish a right of the people to have a healthy environment, including a right to clean air, pure water, and ecologically healthy habitats; declare the Commonwealth's natural resources, among them its air, water, flora, fauna, climate, and public lands, are the common property of all people, including generations yet to come; establish that as trustee of the environment and its natural resources, the Commonwealth shall conserve and maintain them for the benefit of all people.

HB 160 (Freeland)(H. Rules)(+)
Would amend existing law to fix problems created by a previous legislative amendment to state clean water laws regarding Westlake Vinyls and a pre-2004 mixing zone that had been approved for a bioaccumulative chemical of concern. Prior to 2004, mixing zones that allow a certain amount of dilution of discharged wastewater prior to meeting in-stream water pollution limits, was available for bioaccumulative chemicals of concern.  Westlake was one of the facilities that had obtained such an approval, and those pre-2004 approvals were exempted from a ban on mixing zones for BCCs that has been in effect since that time.

The bill corrects many of the problems created by the previous bill, which KRC had unsuccessfully opposed, that could have, if implemented, resulted in Kentucky losing primary regulatory authority for Clean Water Act permitting in the Commonwealth. 

KRC testified before committee in support of the changes to restore the Cabinet’s ability to determine on a permit-by-permit basis whether a pre-2004 mixing zone granted for a BCC should be continued, reduced, or eliminated.  The bill also does not prevent the Cabinet from requiring on a case-by-case basis that a discharger using multi-port diffusers in order to meet water pollutant discharge permit limits adjust any mixing zone to account for the use of diffusers in accelerating the mixing and dilution of wastewaters.

HB 187 (King)(H. CC)(+)
Would require that a greenhouse gas emissions reduction agreement that creates an interest in real property that imposes limitations or affirmative obligations on the use of the real property by its owner and subsequent grantees for the purposes of reducing greenhouse gas emissions or storing greenhouse gas emissions that would have otherwise been released be recorded pursuant to the requirements of KRS 382.110 to be binding on subsequent purchasers or creditors.

HB 197 (Kulkarni)(H. CC)(+, needs revision)
Would require the Energy and Environment Cabinet on or before January 1, 2024, 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.

KRC appreciates Rep. Kulkarni’s advocacy for protective limits on these “forever chemicals” in drinking water systems and in wastewater discharges.  EPA is in the process of developing such limits and we encourage their prompt adoption by the Energy and Environment Cabinet, as well as interim imposition of monitoring requirements for PFAs and PFOAs for all industrial and municipal wastewater discharges and wastewater plant solids from industrial and municipal sources.

HB 222 (Gooch)(H. Rules)(+)
Would extend the levy of the hazardous waste management assessment until June 30, 2032.

HB 264 (Pratt)(H. Sm Bus)(-)
Law would establish an office of regulatory relief that would be empowered to waive compliance with state laws and regulations in order to allow a “sandbox participant” to demonstrate an innovative idea.  To the extent that such a program would allow the suspension of applicability of an environmental protection or workplace safety or health standard, such delegation to the newly-established office is inappropriate, and could jeopardize continued delegated authority for Kentucky to manage several environmental and health and safety programs.  Many individual regulatory programs already contain waivers and variances that allow for innovative or fundamentally different factors while maintaining essential public protections and if others are desired, they should be developed by those agencies and with assurances that such protections will never be sacrificed or traded off. 

HB 306 (Raymond)(H. CC)(+)
Would require radon testing for child care centers, schools, and rental properties.

HB 307 (Raymond)(H. CC)(+)
Would require a sellers and landlords of residential property to conduct and pay for tests to determine lead content as a condition of sale or rental and require disclosure.

HOUSE RESOLUTIONS

HJR 8 (Lawrence)(H. CC)(-)
Joint resolution would apply to Congress under 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 limit the terms of office for its officials and 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.”

HJR 37 (Bauman and others)(H. CC)(-)
Direct the Energy and Environment Cabinet to adopt revisions to the state air quality implementation plan to remove the reformulated gas requirement for Jefferson County and applicable parts of Oldham and Bullitt Counties; specify required elements of the revisions.

The determination by the Cabinet or Metro Louisville Air Pollution Control District on what strategies to employ in order to achieve and maintain air quality should be driven by the periodic reevaluation of the continued efficacy and cost-effectiveness of those measures, and not by legislative mandate.  Elimination of cost-effective measures regarding mobile sources results in many cases in increased burdens on stationary major and area sources.

SENATE BILLS

SB 4 (Mills and others)(S. NR Energy)(-)
Bill would create a presumption against retirement of coal-fired electric utility plants owned by PSC-regulated electric utilities.  While the concept of direct PSC review and approval of decisions to retire generation units deserves consideration and grid resiliency and reliability are legitimate issues, the bill as written has substantial legal and practical problems that could unreasonably burden ratepayers in order to advance continued operation of coal-fired generation units that should be retired because of inefficiency, cost of operation relative to cleaner energy sources, and relative pollutant contributions.

SB 113 (Storm)(S. Transp)(+/-)
Would limit the scope of the Department of Highways regulation of auto recyclers to facilities located along the national highway system rather than all Kentucky roads.  KRC had been concerned with the effect of state deregulation on existing recyclers along roads that would no longer be regulated by the state DOT.  Language was added in past versions that would keep screening, site, and use restrictions imposed by the state in place unless removed by a planning and zoning body, city, or county.

KRC will talk with the sponsor and KDOT about delaying the effective date in order to give counties sufficient time to enact local provisions to replace those being lost by the narrowing of state jurisdiction.

SB 126 (Howell) (S. Judiciary)(-)
Bill would further muddle venue for civil actions against state officials or the General Assembly that challenges the constitutionality of state laws, regulations, and agency orders, by allowing any plaintiff or defendant in such an action to request a change of venue without reason, at which time the case will be assigned randomly by the Supreme Court Clerk to another circuit.  Former law provided that venue was in Franklin Circuit Court, which was changed more recently to provide that venue lies where the plaintiff resides if the plaintiff is a Kentucky resident, or in Franklin County if a non-resident.

SB 127 (West)(S. HS)(-)
Bill would make water fluoridation programs optional by allowing the governing bodies of water systems subject to regulation by the Cabinet for Health and Family Services to decide whether they want to end participation.


SENATE RESOLUTIONS

SR 46 (Wheeler)(S. CC)(+)
Would confirm Mary Pat Regan as a Commissioner for the Public Service Commission.  Commissioner Regan is by training and experience well-qualified for the position and should be confirmed.

SJR 78 (Mills, Storm)(S. State Local Govt)(-)
Senate version of HJR 8, this joint resolution would apply to Congress under 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 limit the terms of office for its officials and 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.

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OTHER BILLS & RESOLUTIONS OF NOTE