What's New for the Environment? - A Peek at the 2017 Regular Session

At the time of press, the Kentucky General Assembly had completed 28 of its 30 legislative days reserved for the 2017 Regular Session. The General Assembly is currently in Veto Recess, when passed bills go the Governor for review and consideration of veto. The legislators return for the final two legislative days, March 29 and 30, before sine die adjournment. With a break in the action, it’s a good time to take a look at new legislation affecting businesses and the environment in Kentucky.

Senate Bill 11 (SB 11) would end Kentucky’s 33-year-old moratorium on the construction of new nuclear power generation facilities. The moratorium, enacted by the state in 1984, prohibits the construction of nuclear power plants in Kentucky until there is a federally-approved means of high-level nuclear waste disposal. Under the bill, new nuclear power plants would have to plan for the storage, not the disposal, of high-level nuclear waste. Construction of a plant could be certified by the state once the facility and its waste storage plans are approved by the U.S. Nuclear Regulatory Commission. The Commonwealth would be responsible for ensuring that the “costs and environmental consequences” of having a nuclear power facility located within the state are fully considered during the permitting and certification process.

SB 11 passed both chambers and has been sent to Governor Bevin for signature. The passage of a bill lifting the nuclear power plant ban was unthinkable in years past in a state whose culture and economy has been dominated by coal. There are no plans in place to construct a nuclear power plant within the Commonwealth, but the bill aims to help balance Kentucky’s energy portfolio between fossil fuels, renewable, and nuclear.

Senate Bill 248 (SB 248) clarifies the definitions of Naturally-Occurring Radioactive Material (NORM) and Technologically-Enhanced Naturally-Occurring Radioactive Material (TENORM) in KRS 211.862. Under the bill, NORM is defined as “any of the primordial radionuclides or radioactivity present in soils, rocks, and materials, that are not concentrated or disturbed as a result of human activities.” TENORM is defined under the bill as “naturally occurring radioactive material with a radionuclide concentration that has been increased by human activities above levels encountered in the natural state or naturally occurring radioactive material made more accessible by human activity.” Under the bill, TENORM does not include “the natural radioactivity of rocks or soils or source material, byproduct material, or special nuclear material as defined in 42 U.S.C. secs. 2011 et seq. and relevant federal regulations implemented by the Nuclear Regulatory Commission.” More importantly, the bill provides that drill cuttings that contain NORM that have been made more accessible shall not be regulated as TENORM in Kentucky. SB 248 has passed both chambers and has been sent to Governor Bevin for signature.

In addition, Senate Bill 249 (SB 249) makes several changes to boards and commissions associated with the Energy and Environment Cabinet and requires full payment of water permit application fees at time of filing. SB 249 has passed both chambers and has been sent to Governor Bevin for signature. House Bill 234 (HB 234) amends the requirements for “permitted area” relating to coal mining. HB 234 has passed both chambers and has been sent to Governor Bevin for signature.

Many of these bills have been overshadowed this session by the prevailing wage and right-to-work legislation. With two legislative days remaining on the calendar, the drone/critical infrastructure bill (HB 291) and HB 72, which requires the filing of a bond when appealing a circuit court decision related to planning and zoning, may still be in play.