The 2023 General Assembly is nearing the end and we at the Kentucky Resources Council continue to track 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 24, March 10, 2023. There are 6 legislative days remaining in the 2023 Regular Session.

This year is a “short” 30-legislative day session. March 15 and 16 are set aside as “concurrence” days, and there is a “veto” recess from March 17 through 28^th before the General Assembly reconvenes on March 29 and 30^th to consider any vetoes of bills and to finish work on bills and resolutions prior to adjournment sine die.Starting with this edition, we have deleted references to those bills that have not been assigned to or heard in any committee, since it is unlikely that they will move forward this session.  For a complete list of those bills and resolutions we supported, tracked, and opposed this session, please refer to the Fifth Edition of our legislative update.
 
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! 

 

BILLS & RESOLUTIONS FOR WHICH KRC HAS TAKEN A POSITION

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.

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 3/10^ths 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 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 160 (Freeland)(S. NR Energy)(+)
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 222 (Gooch)(S. NR Energy)(+)
Would extend the levy of the hazardous waste management assessment until June 30, 2032.

HB 236 (Sharp and others)(S. Rules)(-)
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. Rules)(+/-)
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 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.  That language was not included.  KRC will monitor the implementation of the law if it is enacted.

HB 384 (Dossett)(H. Ag)(+)
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.

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)(S. NR Energy)(+)
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.

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 in the 2020 session.  RFG has become an ineffective strategy for pollution control relative to other measures and KRC does not support SIP revisions to replace RFG with more effective and efficient strategies as needed to achieve and maintain healthy air quality in Metro Louisville.

HJR 61 and HJR 62 (Petrie)(H. CC)(-)
Another joint resolution calling on Congress for a constitutional convention to impose term limits on federal officeholders. See HJR 8.

SENATE BILLS
SB 4 (Mills and others)(H. 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 126 (Howell) (H. Rules)(-)
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)(H. NR Energy)(+)
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. Properly done, it can produce a win-win for utilities and ratepayers.

SB 213 (Higdon)(H. Rules)(+)
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.  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.

KRC testified in support of SB 213 in the House Committee.  That testimony can be read here.

SB 226 (Turner)(H. 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.
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.

KRC testified in House Committee against SB 226.  That testimony can be read here.

SB 241 (Webb and others)(H. A&R)(+)
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 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.  The bill would weaken PSC and public oversight over utility investments in nuclear power proposals and would give utilities effective control over the rate and amount of development of distributed solar energy resources in the Commonwealth.

KRC testified in the Senate Natural Resources and Energy Committee in opposition to SB 245.  That testimony can be read here.

SB 263 (Wheeler, West)(To House)(+)
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)(H. CC)(+)
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.