Summary of Recent Statutory and Regulatory Actions

For additional information, contact W. Blaine Early, III at
Stites & Harbison, PLLC, 250 W. Main Street, Lexington, KY 40507
859-226-2284 and [email protected]

I. Federal Actions

Waters of the United States (“WOTUS”) Final Rule
Originally published 80 Fed. Reg. 37,054 (June 29, 2015).

The WOTUS Final Rule had been stayed by U.S. Sixth Circuit Court of Appeals.

Executive Order 13778, issued February 28, 2017, 82 Fed. Reg. 12,497 (March 3, 2017), directed the EPA to review the current WOTUS rule and to interpret the statutory term “navigable waters” consistent with the opinion of Justice Scalia in the Rapanos case. In that case, Justice Scalia urged the application to “relatively permanent, standing or continuously flowing bodies of water.”

Stream Protection Rule under the Surface Mining Control and Reclamation Act (SMCRA)

The Department of Interior’s Office of Surface Mining issued the final Stream Protection Rule after years of litigation and regulatory controversy. 81 Fed. Reg. 93,066 (Dec. 20, 2016). On February 16, 2017, President Trump signed a Congressional Joint Resolution adopted under the Congressional Review Act to disapprove and invalidate the rule.

Executive Order Promoting Energy Independence and Economic Growth

Executive Order 13783, issued March 28, 2017, 82 Fed. Reg. 16,093 (March 31, 2017), issued several directives related to energy development and energy use. Among the many components, this order directed agencies to review all rules and remove burdens on use of domestic energy; directed EPA to review the Clean Power Plan; rescinded previous Executive Orders, Reports, and Guidance issued by the Obama administration on climate change and greenhouse gases; directed the Secretary of the Interior to lift moratorium on leasing federal lands for coal production and to review, suspend, revise, or rescind various rules relating to oil & gas production.

II. Kentucky – Statutory Actions by General Assembly

HB 50 - Relating to Administrative Regulations
Signed by Governor Bevin, March 21, 2017

HB 50 amended KRS Chapter 13A to make administrative regulations expire unless the applicable administrative body acts to prevent expiration. Regulations with effective date prior to July 1, 2012, will expire July 1, 2019. Regulations with effective dates after July 1, 2012, will expire seven years after the last effective date.

SB 11 – Relating to Nuclear Power
Signed by Governor Bevin, March 27, 2017

SB 11 provided a pathway for future development of nuclear power facilities by removing certain statutory limitations that, when fully implemented, prohibited development of nuclear facilities in Kentucky.

SB 248 – Relating to Radiation
Signed by Governor Bevin, March 27, 2017

SB 248 amends the definition of naturally-occurring radioactive material (NORM), adds a definition of technologically-enhanced naturally-occurring radioactive material (TENORM), and exempts from TENORM regulation the drill cuttings from wells. The Cabinet for Health and Family Services is responsible for regulation of TENORM.

SB 249 – Relating to Omnibus Revisions for Energy and Environment Cabinet
Signed by Governor Bevin, March 27, 2017

SB 249 was an omnibus bill that made numerous changes in the structure and function of the Energy and Environment Cabinet. SB 249’s impacts included eliminating the Kentucky Environmental Quality Commission and the Kentucky Mining Board, and exempts individual homeowners from obtaining operator certification for operating a single-residence wastewater system.

II. Kentucky – Regulatory Actions by Energy and Environment Cabinet

Revisions to Regulations on Administrative Hearings
Published in Administrative Register, April 1, 2017

Revisions to Regulations on Drinking Water Facilities and Distribution Systems
401 KAR Chapter 8
Published in Administrative Register, May 1, 2017

Revisions to 401 KAR Chapters 4 (water resources) and Chapter 5 (KPDES permitting) expected soon