2023 Legislative Alert #5

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 20, March 3, 2023.

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

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.

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.

Click here for the key to understanding where a bill is in the process.
 

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HOUSE BILLS
HB 4 (Branscum and others)(S. Ag)(-, needs major revision)
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. As written, KRC does not support the bill, since it is a weakening of protections for landowners from what is bring required by the state Siting Board under current law. 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.

HB 40 (Lewis, Hale)(H. Rules)(-)
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. Since 2005, the percent of regulations out of the over 11,000 reviewed by legislative committee that have been deemed deficient, and which have gone into effect notwithstanding, is 3/10ths of 1% of those regulations.

Any effort by the General Assembly to direct or 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. State Govt)(-)
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)(S. CC)(+)
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)(S. CC)(+)
Would extend the levy of the hazardous waste management assessment until June 30, 2032.

HB 236 (Sharp and others)(To Senate)(-)
Would provide that fiduciaries shall consider the sole interest of the members and beneficiaries of the retirement systems using only pecuniary factors and prohibit the consideration of or actions on nonpecuniary interests including environmental, social, political, and ideological interests. The bill furthers the legislative effort to restrict investment that includes environmental or other societal goals as criteria for investment. Any legislative enactment should assure no state interference with the ability of beneficiaries in state-administered retirement systems to choose investment portfolios for their retirement that include such criteria or limitations.

Further, the goals of ESG investing should not be presented as conflicting with the duties of fiduciaries, who should be permitted to consider ESG factors as they relate to future risk and financial investment criteria. KRC does not accept the false premise that ESG goals are inconsistent with fiduciary responsibility, or that ESG goals are inconsistent with profitability in the short and long term.

HB 264 (Pratt)(S. Eco Dev)(+/-)
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. KRC has sent Representative Pratt suggested language to assure no compromise to workplace health and safety, and to environmental health and safety regulations, and to programs delegated under federal law.

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.

HB 384 (Dossett)(H. CC)(+)
Would establish the Healthy Farm and Food Innovation Board and fund to help fund nonprofits working on health food access. House Bill 384 would create stability and opportunities for direct farm impact food access programs— such as Kentucky Double Dollars, Farms to Food Banks, and Fresh RX for MOMs—and pave the way for additional new efforts that support the vitality of Kentucky agriculture and the health of Kentuckians.

HB 422 (Timoney)(H. CC)(+)
Would reform vegetation management by electric utilities regulated by the Public Service Commission to have a vegetation management plan approved by the commission; establish homeowner rights with respect to vegetation maintenance; require the utility develop a brochure for homeowner rights and have the information available on its website; allow for civil action for unauthorized tree pruning or removal; allow for damages for unauthorized tree removal or pruning; require written consent to remove more than 25 percent of tree canopy.

HB 426 (Gooch)(H. CC)(+)
Would amend existing obligations of utilities regarding the provision of “adequate, efficient, and reasonable" service to explicitly add “reliable” service.

HB 532 (Flannery)(H. CC)(+)
Would revise laws concerning municipal utilities to increase accountability, including requiring creation of a utility board to administer the functions of the utility; require utility rates, terms of service and customer service to be administered through rules of the board; require rates be fair, just, and reasonable and predicated on the utility cost of service; prohibit commingling of funds between the utility and other local government functions; prohibit the expenditure of utility revenues on any function other than the running of the electric utility.

HB 533 (Callaway)(H. CC)(-)
Would expand anti ESG efforts by prohibiting state contracts and investment with companies that engage in any “politically sensitive company boycotts.”

HB 552 (Gooch)(H. CC)(-)
Would prohibit any agency or instrumentality of state or local government from engaging in solar geoengineering or weather modification strategies to help mitigate climate change. Research in climate mitigation strategies should not be curtailed blanketly by legislative mandate.

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)(To Senate)(+/-)
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. Under HJR 8, enacted in the 2020 General Assembly Regular Session, there is already a process by which the Cabinet and District have evaluated the use of reformulated gas as a pollution control strategy and will, as provided in the Clean Air Act and once Louisville is designated as attainment for ozone, petition to end the use of RFG since it is no longer a cost-effective strategy given other pollution reductions in the area and EPA-mandated changes in the formulation of all gasoline. KRC is working with the sponsor, Cabinet, and District to revise the resolution to assure it doesn’t not interfere with the analysis, process, and outcome mandated under HJR 8.

HJR 61 (Petrie)(H. CC)(-)
Another joint resolution calling on Congress for a constitutional convention to impose term limits on federal officeholders. See HJR 8.

HJR 62 (Petrie)(H. A&R)(-)
Another joint resolution calling on Congress for a constitutional convention to impose fiscal constraints on federal government. See HJR 8.

SENATE BILLS 
SB 4 (Mills and others)(To House)(-)
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’s preference is to maintain KDOT’s current authority over all recycling facilities rather than limiting their jurisdiction and thus imposing more burden on local governments for regulation.

SB 126 (Howell) (H. 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.

SB 192 (Wheeler)(S. Rules)(+)
Would allow an investor-owned electric utility to apply to the Public Service Commission to finance though securitization both extraordinary costs and costs associated with the retirement of electric generation of more than $200 million dollars for a single regulatory asset or more than $275 million for multiple regulatory assets and require a decision of the commission on securitization to be predicated on fair, just, and reasonable and the public interest of the utility customers. Securitization is a method of refinancing utility obligations in order to lower the interests costs to ratepayers for retirement of debt by converting the short-term debt to longer-term secured debt.

SB 213 (Higdon)(To House)(+)
Bill would define domestic sewage treatment sludge as a “biosolid” and require it be regulated in conformance with 40 CFR Part 503, which are the self-implementing federal regulations governing use and disposal of sewage sludge. The Committee Substitute to the bill is a much-appreciated effort by Senator Higdon to attempt to responsibly address the need of the cities for a predictable and streamlined permitting process, while protecting farmers from application of contaminated sludges on their lands. He removed a "no more stringent than" provision from an earlier draft of the bill, which maintains Kentucky's flexibility to require more than the federal minimum where needed.

KRC will be actively involved in the regulation development process to assure that where needed the Cabinet exercises the discretion contemplated by the 40 CFR Part 503 standards to fully protect public health and the environment, and prevent today’s disposal of municipal sewage sludge from becoming tomorrow’s superfund problem because of irresponsible land application of wastes with persistent environmental pollutants like PFAs.

SB 226 (Turner)(S. Rules)(-)
Bill would significantly interfere with the implementation of Kentucky’s water quality standards when permitting discharges, such as coal mining-related wastewaters, into streams containing federally threatened and endangered species, and would alter timeframes for issuance of water quality certifications.

Among other provisions, it would require the Energy and Environment Cabinet, when issuing permits under the Clean Water Act for discharges into outstating state resource waters, to presume that water quality will be maintained if the permittee complies with technology-based effluent limitations for its industry or with species-specific protection measures imposed on its operations by another state or federal agency, give substantial weight to evidence that discharges from similar operations have not impacted the same or similar threatened or endangered species, not impose conditions that are more stringent than United States Fish and Wildlife Service requirements to protect a threatened or endangered aquatic organism or habitat, presume that compliance with numeric water quality standards applicable to the discharge shall constitute compliance with narrative water quality standards applicable to outstanding state resources waters that support threatened or endangered species. The bill is in several ways inconsistent with Kentucky’s obligations under the Clean Water Act and will likely spawn significant litigation and more delays and uncertainty in permitting under the 402 and 404 programs.

SB 241 (Webb and others)(S. Rules)(+)
Would amend laws governing acquisition of conservation easements by the Department of Fish and Wildlife Resources and make other changes in state fish and wildlife laws.

SB 244 (Berg)(S. A&R)(+)
Would repeal and reenact radon safety certification program.

SB 245 (Frommeyer and Williams)(S. NR Energy)(-)
Bill advocated by several investor-owned utilities would make several changes in laws regulating public utilities, including allowing securization of debt by investor-owned electric utilities, authorizing natural gas utility to file an application for a recovery mechanism for using innovative natural gas resources such as biogas and syngas to establish needed infrastructure; require the PSC to allow recovery for an electric utility of reasonable expenses associated with obtaining an early site permit from the United States Nuclear Regulatory Commission; require the Public Service Commission to consider the policy of the Commonwealth for electric utilities to own their own renewable electric generation when granting a certificate of convenience and necessity for the utility to construct renewable facilities; and establish a rebuttable presumption that constructing a plant or facility with a projected cost of less than 3 percent of the utility's total net plant to be an ordinary extension of the system.

SB 263 (Wheeler, West)(S. State Local Govt)(+, may need some revisions)
Would address regionalization of public water and wastewater systems to clarify the goal of offering secure water and adding managerial and technical resources as needed resources for the improvement of infrastructure for the security and safety of water systems; encourage infrastructure funding for regionalization, merger and consolidation of water and wastewater systems.

SB 277 (Turner)(S. Rules)(+)
Agency-sponsored bill would revise regulations and framework for floodplain management; prohibit buildings, barriers, or obstructions in floodplains or floodways without approval and a permit from the Energy and Environment Cabinet; allow the Energy and Environment Cabinet to require approval prior to construction related to agricultural operations that impact the base flood of a stream; establish administrative regulations requiring some dam owners to develop and maintain emergency action plans; and prohibit encroachment on the reservoir area of any dam in Kentucky.

SENATE RESOLUTIONS  
SR 46 (Wheeler)(S. Rules)(+)
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

The Council has listed below a number of bills on which we have taken no position, but which we believe are of public interest or concern, and which affect one or more facets of justice, personal freedom, and social responsibility. They are presented for your consideration. Read the bills and resolutions of note by clicking here.