The August meeting of the Administrative Regulation Review Subcommittee was held on Thursday, August 7, 2003, at 9:30 AM, in Room 149 of the Capitol Annex. Senator Damon Thayer, Co-Chair, called the meeting to order, and the secretary called the roll.
Present were:
Members: Senator Damon Thayer, Co-Chair; Senators Joey Pendleton, Richard Roeding, and Gary Tapp; Representatives James Bruce, Jimmie Lee, and Jon David Reinhardt.
Guests: Representative Fred Nesler; Representative Paul Marcotte; Michael Moné, Board of Pharmacy; Nathan Goldman, Board of Nursing; Nancy Black, Kevin Brown, Lisa Shelley, Board for Proprietary Education; Mark Farrow, Ann Stewart, Department of Agriculture; Sean Alteri, John Lyons, Henry List, Carl Campbell, Jim Villines, Pam Carew, James McKenzie, Natural Resources and Environmental Protection Agency; Glenn Jennings, Wendy Boardman, Brenda Parker, Ralph Von Derau, Elizabeth Johnson, Department of Insurance; John Gray, Ann Gordon, Alex Reese, Debra Bahr, Jesse Williams, Frank Persinger, Trish Howard, Eric Friedlander, Cabinet for Health Services; Wendy Cumpston, Rosanne Barkley, Karen Doyle, Shirley Eldridge, Cabinet for Families and Children; Fred Buckner, Vulcan Materials; Larry G. Kirk, Old Hickory Clay Co.; William C. Eddins, Bob Holt, Mark McGraw, Don Walker, Kentucky Crushed Stone Association; Tom Fitzgerald, Kentucky Resources Council; Russell Osborne, Rinker Materials, Quentin Walker, Jr., M.A. Walker; Harl O'Neal, Jr., Kentucky-Tennessee Clay Co., Tom Nugent, Nugent Sand Company; Helen Payne; William L. LeGrand; Elsie Ewbank; and Doug Jackson.
LRC Staff: Dave Nicholas, Donna Little, Donna Kemper, Karen Smith, Sarah Amburgey, Ellen Steinberg and Emily Caudill.
Administrative regulations reviewed by the Subcommittee:
The Subcommittee determined that the following administrative regulations, as amended by the promulgating agency and the Subcommittee, did not comply with statutory requirements and were deficient:
Natural Resources and Environmental Resources Cabinet: Department for Surface Mining Reclamation and Enforcement: Surface Effects of Noncoal Mining
405 KAR 5:001 & E. Definitions for 405 KAR Chapter 5. Hank List, Secretary, Carl Campbell, Commissioner, and Jim Villines, Branch Manager, represented the Cabinet. Representative Paul Marcotte, Tom Fitzgerald, Director, Kentucky Resources Council, Elsie Ewbank, Doug Jackson, and Helen Payne appeared in favor of these administrative regulations. Don Walker, President, Kentucky Crushed Stone Association, Harl O'Neal, Jr., Kentucky-Tennessee Clay Co., and Mark McGraw, Greenebaum, Doll, & McDonald, appeared in opposition to these administrative regulations.
Secretary List stated that when Governor Patton ordered a moratorium on new permits for noncoal mining, he also ordered the Cabinet to review their existing regulatory scheme and promulgate new regulatory provisions that would better protect the public and the environment. In developing 405 KAR 5:001, 5:030, 5:035, 5:038, 5:045, 5:053, 5:060, 5:075, and 5:080, the Cabinet had worked with the noncoal mining industry and those wanting stricter regulatory controls for the industry. Neither group was satisfied completely with the administrative regulations.
In response to a question by Representative Bruce, Secretary List stated that growth had brought citizens in closer proximity to noncoal mining operations. Mostly, it was those citizens who favored the new regulatory provisions.
In response to questions by Senator Pendleton, Secretary List stated that the catalyst for these administrative regulations was Governor Patton's interest in changing the direction and economy of Eastern Kentucky from mining to ecotourism, especially in the Pine Mountain area. Governor Patton wanted to ensure that the natural beauty of that area, and the scenic vista of the Pine Mountain linear park, would not be further eroded by the extensive noncoal mining in that region. Because the regulatory provisions could not be limited to that region, the provisions applied to noncoal mining across the state. The noncoal mining operations would incur additional production costs to comply with the new regulatory provisions. The Cabinet was uncertain about how that increase would financially impact the Commonwealth which was the largest purchaser of mined limestone products due to their use in highway projects. Additionally, the Cabinet had no projection about the marketing effect of the increased costs on the mining companies. After the public hearing and comment period, the Cabinet had amended these administrative regulations in response to some of the industry's concerns, but the Cabinet could not fully satisfy the industry and still carry out the Governor's directive.
Senator Pendleton stated that while he appreciated the ecotourism concerns for Pine Mountain, there needed to be a different solution than financially disadvantageous regulatory provisions that applied statewide.
In response to a question by Representative Lee, Secretary List stated that in the same Executive Order, the Governor had also ordered the Transportation Cabinet to study the financial impact of the new regulatory standards. However, the Transportation Cabinet's brief handwritten study report only indicated that the new standards would increase production costs by two (2) dollars a ton, for a total increase of $20,000,000.00.
Representative Reinhardt stated that a two (2) dollar a ton increase in cost was a twenty-five (25) percent increase which was substantial.
Representative Lee stated that he questioned why only the moratorium portion of the executive order was being enforced and not the portion regarding the financial impact study.
Representative Lee made a motion, seconded by Senator Pendleton, for the Subcommittee to request a copy of the financial impact study from the Transportation Cabinet. Without objection, it was so ordered.
In response to a question by Senator Tapp, Secretary List stated that whether these new mining standards increased production costs so significantly that Kentucky mines would no longer be able to compete with out of state mines depended on each mine's location, market, shipping method, and regional competition.
Senator Tapp stated that because these administrative regulations would increase the production costs of limestone, he was concerned with their financial impact on Kentucky's highway budget. Additionally, he was concerned about the resulting negative impact on Kentucky's economy if roads could not be built and maintained.
Senator Roeding stated that he disapproved of a regulatory scheme that would negatively impact the struggling economy. Instead, the Cabinet should encourage the noncoal industry and the adjoining landowners to work together to resolve any problems.
Co-Chair Thayer stated that there were several concerns regarding this regulatory scheme: (1) While he appreciated Governor Patton's desire to protect Pine Mountain, he disagreed with his use of a statewide regulatory scheme to do so; (2) If the state wanted roads, culverts, walking paths and the like, crushed stone was required and that mandated excavation; (3) Additional regulatory requirements were not necessary for mines to coexist harmoniously with surrounding areas because mines across the state were doing so already, such as the Georgetown quarry; (4) 405 KAR 5:060's slope requirement would prevent the mines from marketing the overburden and would require the use of more overburden than many of the mines generated; and (5) The increased production costs necessary for compliance would affect more than just the industry. Kentucky taxpayers would ultimately bear the burden because Kentucky was the largest purchaser of crushed limestone.
Representative Bruce stated that if the financial impact study was not completed as mandated by the executive order, he questioned whether the Cabinet had the right to present these administrative regulations to the Subcommittee.
In response to a question by Representative Bruce, Subcommittee staff stated that there was a question about whether the Cabinet was relying on the executive order as its authorization for promulgating the administrative regulations. If so, it was not clear whether noncompliance with the order might call into question the authority for the administrative regulations.
Senator Pendleton stated that the Subcommittee should wait to review these administrative regulations until after the Subcommittee had received the financial impact study from the Transportation Cabinet.
In response to a question by Co-Chair Thayer, Secretary List stated that due to the Governor's strong interest in pursuing these administrative regulations, the Cabinet could not agree to defer their review.
In response to a question by Senator Roeding, Secretary List stated that 405 KAR 5:030 included a transportation plan because the largest complaint regarding noncoal mines was their transportation of the products and the resulting effect on the roads. He agreed that once the trucks left the mining sites, they were under the jurisdiction of the Transportation Cabinet. The Cabinet hoped that including transportation information in the permitting process would prevent many of the potential problems from developing.
Senator Roeding stated that he understood the benefits of the transportation plan but was concerned about its inclusion in 405 KAR 5:030 because it exceeded the Cabinet's statutory authority to promulgate administrative regulations. The plan would be better established by statute rather than through the administrative regulation process.
Senator Tapp stated that each truck paid a weight distance tax to help repair any damage to the roads.
Representative Reinhardt stated that the mines could ensure that trucks did not leave their sites overweight.
Tom Fitzgerald stated that these administrative regulations made very moderate changes to the regulatory requirements for noncoal mining. Any increased production costs resulting from the additional requirements should be compared to the current costs being paid by adjoining landowners for the damage caused by the mines. In most cases, the affected parties did not move to the mines but rather the mines opened in existing residential and agricultural areas. The mining placed at risk the landowners' homes, their quality of life, the tranquility of their communities, and the safety of their families. Industry would never favor increased costs but the administrative regulations addressed important issues such as the replacement of water supplies, public notice for permit amendments, and reclamation bonds. Additionally, the transportation plan required by 405 KAR 5:030 did not exceed the Cabinet's statutory authority because it was merely an informational requirement.
In response to questions by Representative Reinhardt, Mr. Fitzgerald stated that the groundwater use survey required by these regulatory provisions was necessary to establish a baseline amount of use so a mine would know how much groundwater it needed to replace.
Representative Marcotte stated that he wanted to address the current mining permit process because it was deficient. During the permit process for the Gallatin County mine, he informed the Cabinet of road and other safety concerns regarding the mine. The Cabinet informed him by letter that the existing administrative regulations in 405 KAR Chapter 5 did not allow them to consider those concerns in making the permitting decision. His frustration increased when the Transportation Cabinet informed him that it lacked sufficient funding to repair roadways damaged by mines yet would not help him prevent the mine from receiving a permit. To rectify the legal tilt favoring the mines against the consumers and the landowners, he prepared legislation addressing road safety issues for areas without planning and zoning commissions. It was heavily opposed. He would introduce further legislation during the 2004 session of the General Assembly if the problems were not alleviated by then.
Ms. Ewbank stated that she lived on Highway 1992 and was concerned by its disintegration in the last six (6) months due to trucks from the nearby noncoal mine. The Transportation Cabinet refused the community's repair request because of insufficient funds. She showed pictures of the road damage to Subcommittee members.
In response to a question by Co-Chair Thayer, Secretary List stated that it was not in the Cabinet's purview to consider traffic and road safety issues when considering a mine application permit.
Co-Chair Thayer stated that to address the traffic and road safety issues, either the Transportation Cabinet needed to become involved or the General Assembly needed to enact legislation providing the Cabinet with the statutory authority to address those issues through the regulatory process.
Mr. Jackson stated that the mines caused problems in addition to the ones related to the roadways. The mines created dust containing carcinogens that came into nearby homes and injured their families. The mine near his home had generated so much dust that he hadn't been able to live in his home. He showed pictures of the damage and dust.
Ms. Payne stated that the Gallatin County mine had generated so much dust that it had caused asthma and other lung problems in local community members. Additionally, the blasting at the mine had cracked their sidewalks, the foundations and walls of their homes, and had shifted their fireplaces. They had informed the Environmental Protection Agency of their problems but it would not help them.
Mr. Walker stated that the Kentucky Crushed Stone Association represented about 100 members of an industry that annually produced about 70 million tons of crushed stone, provided about 1,500 jobs, and impacted the Commonwealth's economy by about $500,000,000.00. If the new administrative regulations increased production costs by two (2) dollars a ton, their industry would incur $140,000,000.00 in additional costs. When the existing regulatory scheme was promulgated in 1995, the Cabinet had worked with them in developing the requirements. The Governor had not permitted the Cabinet to utilize them as a partner in developing the new regulatory provisions. Their members were already at a competitive disadvantage to operations in surrounding states because Kentucky's existing regulatory requirements were more stringent and because they were subject to additional taxes. If their members could not remain competitive with the operations in surrounding states, Kentucky would lose jobs, revenue, and taxes.
Mr. McGraw stated that on behalf of the Kentucky Crushed Stone Association, he wanted to emphasize several issues regarding the legality of these administrative regulations: (1) The Cabinet had not specified the statement of necessity for the administrative regulations, as required by KRS Chapter 13A; (2) The Cabinet had relied solely on the Interstate Mining Compact for its statutory authority to promulgate the administrative regulations; and (3) The Cabinet used the coal mining regulations as a template for these administrative regulations which was inappropriate because they were based on a federal program tailored for the coal mining industry. Additionally, a national study had concluded that coal mining regulations should not be used as a basis for noncoal mining regulations because the mining methods were too different. Instead, the Cabinet should have based their regulatory scheme for noncoal mining on how surrounding states were regulating the industry.
Co-Chair Thayer stated that he encouraged the Kentucky Crushed Stone Association to work with the Gallatin County mine, Representative Marcotte, Secretary List, and the Transportation Cabinet to provide some relief to the community members near that mine. They should not be suffering from such deplorable living conditions. If the problem required a legislative solution, he and the Subcommittee were prepared to support Representative Marcotte in his efforts to produce one. He requested that the Association copy the Subcommittee on any correspondence regarding the Gallatin County mine and that it update the Subcommittee on the status of resolving that situation by Labor Day. Mr. Walker agreed to this request.
Senator Roeding requested that he be invited to participate in the meetings and correspondence for the Gallatin County mine as he was the state senator for that area.
Representative Bruce stated that he had not received any complaints regarding the rock quarry in Christian County because it was clean and had instituted beautification efforts. The crushed stone industry as a whole needed to pressure the Gallatin County mine to operate more responsibly.
Mr. O'Neal stated that the Kentucky -Tennessee Clay Company opposed these administrative regulations because they did not differentiate clay mining from the other forms of noncoal mining. When Governor Patton issued the moratorium on noncoal mining permits, at their request, he lifted the moratorium for the clay industry in Western Kentucky. When the industry requested the same exemption from these administrative regulations, they were denied by the Cabinet.
In response to questions by Senator Roeding, Secretary List stated that these administrative regulations applied to the mining of clay as well as sand and gravel because they all involved excavation. Governor Patton also intended these administrative regulations to require greater reclamation of excavation sites so that they would be returned to their original contour or condition, to the extent it was technically feasible. Mr. Campbell added that the regulatory provisions needed to apply to the clay industry because there were significant environmental concerns associated with that industry in the Eastern portion of the state, such as acid mine drainage. The Cabinet could not exempt the clay industry in the western portion of the state from the provisions without violating the Constitution.
Senator Tapp made a motion, seconded by Representative Bruce, to find 405 KAR 5:001, 5:030, 5:035, 5:038, 5:045, 5:053, 5:060, 5:075, and 5:080 deficient. On a roll call vote, the administrative regulations were unanimously found deficient, with Co-Chair Thayer, Senator Roeding, Senator Tapp, Senator Pendleton, Representative Bruce, Representative Lee, and Representative Reinhardt voting in favor of the finding of deficiency.
Representative Bruce stated that he voted in favor of the deficiency finding because it was inappropriate for the Subcommittee to review the administrative regulations without the prior ratification of the Executive Order by the Governor.
Representative Lee stated that he voted in favor of the deficiency finding because the General Assembly, rather than the Subcommittee, needed to decide the best way to address the myriad issues regarding noncoal mining operations in Kentucky. After the Subcommittee found the administrative regulations deficient, they, along with the other members of the General Assembly, needed to commit to enacting legislation pertaining to noncoal mining with the same fervor that they had addressed coal mining.
Subcommittee staff stated that because the administrative regulations could remain in force despite the finding of deficiency, staff suggested that the Subcommittee entertain a motion to approve the suggested amendments for them so that they would be in compliance with the drafting and format requirements of KRS Chapter 13A.
A motion was made and seconded to approve the following amendments: (1) to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph to include authorizing language; (2) to amend Section 1 to specify citations; and (3) to amend various sections to comply with the drafting and format requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
405 KAR 5:030 & E. Permit requirements. Subcommittee staff stated that it was the staff's position that the "Transportation Plan" in Section 20 of this administrative regulation did not comply with the Cabinet's statutory authority to promulgate administrative regulations pertaining to mining.
A motion was made and seconded to approve the following amendments: (1) to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph to include authorizing language; (2) to amend Section 1 to include locations where permit applications may be submitted; (3) to amend Sections 5 and 25 through 30 to specify and include citations; (4) to amend Section 22 to include all requirements for public notice of the permit application; and (5) to amend various sections to comply with the drafting and format requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
405 KAR 5:035 & E. Signs, markers, and safety barriers. A motion was made and seconded to approve the following amendments: (1) to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph to include authorizing language; (2) to amend Section 1 to specify citations; and (3) to amend various sections to comply with the drafting and format requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
405 KAR 5:038 & E. Blasting. A motion was made and seconded to approve the following amendments: (1) to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph to include authorizing language; (2) to amend Section 1 to provide a basis for the Cabinet's determination as to what constituted "appropriate mitigative measures"; (4) to amend Sections 1 and 3 to specify citations; and (5) to amend various sections to comply with the drafting and format requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
405 KAR 5:045 & E. Protection of environmental resources. A motion was made and seconded to approve the following amendments: (1) to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph to include authorizing language; (2) to amend Sections 1 and 2 to specify and include citations; (3) to move the definition of "Valid Existing Rights" to Section 1, pursuant to KRS 13A.222(4)(e); and (4) to amend various sections to comply with the drafting and format requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
405 KAR 5:053 & E. Replacement of water supply. A motion was made and seconded to approve the following amendments: to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph to include authorizing language. Without objection, and with agreement of the agency, the amendments were approved.
405 KAR 5:060 & E. Handling of materials. A motion was made and seconded to approve the following amendments: (1) to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph to include authorizing language; (2) to amend Sections 1, 2, and 5 to specify and include citations; (3) to amend Sections 1, 3, and 5 to provide general guidelines for Cabinet determinations; and (4) to amend various sections to comply with the drafting and format requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
405 KAR 5:075 & E. Contemporaneous reclamation. A motion was made and seconded to approve the following amendments: (1) to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph to include authorizing language; (2) to amend various sections to specify citations; and (3) to amend various sections to comply with the drafting and format requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
405 KAR 5:080 & E. Reclamation bond. A motion was made and seconded to approve the following amendments: (1) to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph to include authorizing language; (2) to amend Section 4 to specify citations; and (3) to amend various sections to comply with the drafting and format requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
Administrative regulations reviewed by the Subcommittee:
General Government Cabinet: Boards and Commissions: Board of Pharmacy
201 KAR 2:074. Pharmacy services in hospitals or other organized health care facilities. Michael Moné, Executive Director, represented the Board.
A motion was made and seconded to approve the following amendments: (1) to amend the RELATES TO and STATUTORY AUTHORITY paragraphs to correct statutory citations; (2) to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph to clearly state the necessity for and function served by this administrative regulation, as required by KRS 13A.220(3)(f); (3) to amend Sections 1 to 5 to comply with the drafting and format requirements of KRS Chapter 13A; and (4) to delete Section 6 because it repeated the statutory provisions, in violation of KRS 13A.120(2)(e) and (f). Without objection, and with agreement of the agency, the amendments were approved.
Board of Nursing
201 KAR 20:320. Standards for curriculum of prelicensure registered nurse programs. Nathan Goldman, General Counsel, represented the Board.
A motion was made and seconded to approve the following amendments: (1) to amend the RELATES TO and STATUTORY AUTHORITY paragraphs to correct statutory citations; (2) to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph to clearly state the necessity for and function served by this administrative regulation, as required by KRS 13A.220(3)(f); and (3) to amend Section 1 to comply with the drafting and format requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
201 KAR 20:330. Standards for curriculum of prelicensure practical nurse programs. A motion was made and seconded to approve the following amendments: (1) to amend the RELATES TO and STATUTORY AUTHORITY paragraphs to correct statutory citations; (2) to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph to clearly state the necessity for and function served by this administrative regulation, as required by KRS 13A.220(3)(f); and (3) to amend Section 1 to comply with the drafting and format requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
Board of Proprietary Education
201 KAR 40:040. Commercial driver license training school curriculum. Nancy Black, Executive Director, and Kevin Brown, Assistant Attorney General, represented the Board.
In response to a question by Representative Bruce, Ms. Black stated that the Board of Proprietary Education and this administrative regulation regulated the Commercial Driver License (CDL) training schools rather than the CDL applicants. However, she would investigate the Kentucky Chiropractor Association's concern that school bus drivers were being advised against using chiropractors for physical examinations, in violation of state law.
In response to questions by Senator Roeding, Ms. Black stated that because the Transportation Cabinet rather than the Board regulated the CDL application and licensing procedures, the Board lacked the statutory authority to require CDL applicants to undergo criminal history background checks. Pursuant to its authority to regulate the CDL training schools, the Board did require the CDL training school owners, instructors, directors, and agents to submit to the checks.
A motion was made and seconded to approve the following amendments: (1) to amend the RELATES TO, STATUTORY AUTHORITY, and NECESSITY FUNCTION AND CONFORMITY paragraphs to correct statutory citations; (2) to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph to clearly state the necessity for and function served by this administrative regulation; and (3) to amend Sections 2 to 5 to comply with the drafting and format requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
201 KAR 40:050. Application for license for commercial driver license training school. In response to a question by Senator Tapp, Ms. Black stated that the fees included in this administrative regulation were established by statute. Subcommittee staff stated that the application fees were established by statute, KRS 165A.475.
A motion was made and seconded to approve the following amendments: (1) to amend the RELATES TO, STATUTORY AUTHORITY, and NECESSITY FUNCTION AND CONFORMITY paragraphs to correct statutory citations; and (2) to amend Sections 1, 2, 4, 6, and 7 to comply with the drafting and format requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
201 KAR 40:060. Application for renewal of license for commercial driver license training school. A motion was made and seconded to approve the following amendments: (1) to amend the RELATES TO, STATUTORY AUTHORITY, and NECESSITY FUNCTION AND CONFORMITY paragraphs to correct statutory citations; and (2) to amend Sections 1 to 7 to comply with the drafting and format requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
201 KAR 40:070. Commercial driver license training school instructor and agent application and renewal procedures. A motion was made and seconded to approve the following amendments: (1) to amend the RELATES TO and STATUTORY AUTHORITY paragraphs to correct statutory citations; and (2) to amend Sections 1, 2, 3, and 5 to comply with the drafting and format requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
201 KAR 40:080. Maintenance of student records, schedule of fees charged to students, contracts and agreements involving licensed commercial driver training schools, advertising and solicitation of students by commercial driver license training schools. A motion was made and seconded to approve the following amendments: (1) to amend the RELATES TO, STATUTORY AUTHORITY, and NECESSITY FUNCTION AND CONFORMITY paragraphs to correct statutory citations; and (2) to amend Sections 1 to 5 to comply with the drafting and format requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
201 KAR 40:090. Complaint procedure against agents, commercial driver license training schools, uncredentialed agents, and uncredentialed commercial driver license training schools. A motion was made and seconded to approve the following amendments: (1) to amend the RELATES TO, STATUTORY AUTHORITY, and NECESSITY FUNCTION AND CONFORMITY paragraphs to correct statutory citations; and (2) to amend Sections 2 and 6 to comply with the drafting and format requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
201 KAR 40:100 & E. Standards for Kentucky resident commercial driver training school facilities. A motion was made and seconded to approve the following amendments: (1) to amend the RELATES TO, STATUTORY AUTHORITY, and NECESSITY FUNCTION AND CONFORMITY paragraphs to correct statutory citations; (2) to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph to clearly state the necessity for and function served by this administrative regulation; (3) to amend Sections 1, 2, and 4 to comply with the drafting and format requirements of KRS Chapter 13A; and (4) to add Section 5 to incorporate by reference the required material. Without objection, and with agreement of the agency, the amendments were approved.
Department of Agriculture: Marketing and Product Promotion
302 KAR 39:010 & E. Agritourism. Mark Farrow, General Counsel, represented the Department.
In response to questions by Co-Chair Thayer, Mr. Farrow stated that this administrative regulation enabled temporary agritourism sites to do business more easily. It also enabled the Department's Agritourism Office to better locate the sites and assist in marketing them.
In response to questions by Senator Roeding, Mr. Farrow stated that this administrative regulation did not apply to farmers' markets. To qualify as a temporary agritourism site, the activity had to be held on an active working farm.
In response to Representative Reinhardt, Mr. Farrow stated that this administrative regulation enabled the Department to better locate temporary agritourism site owners and to better assist them in advertising their sites. No fees were required for the sites to receive those services.
A motion was made and seconded to approve the following amendments: to amend Sections 2 and 3 to comply with the drafting and format requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
Natural Resources and Environmental Protection Cabinet: Department for Environmental Protection: Division for Air Quality: Hazardous Pollutants
401 KAR 57:002. 40 C.F.R. Part 61 national emission standards for hazardous air pollutants. John Lyons, Director, and Sean Alteri, Section Supervisor, Administrative Regulation Development, represented the Department.
In response to questions by Co-Chair Thayer, Mr. Lyons stated that these administrative regulations, 401 KAR 57:002, 60:005, and 63:002, did not apply to vehicle emission testing. They established emission standards for hazardous pollutants by stationary sources, such as industrial facilities. They did not establish any unfunded mandates or fees for the industry.
In response to a question by Senator Roeding, Mr. Lyons stated that these administrative regulations adopted the federal emission standards for the stationary sources. The standards were identical to those at the federal level and did not impose more stringent requirements.
In response to questions by Representative Reinhardt, Mr. Lyons stated that the incorporated standards affected about fifty (50) facilities and that they were stricter than the existing standards. To comply with the new standards, the facilities would need to implement controlled technology to reduce their hazardous air pollutants. The facilities would incur costs in implementing those controls. The costs would differ for each facility depending on the controls required for that type of facility. However, the Department had to update their state implementation plan with the stricter standards if the state was to remain in compliance with federal requirements. To inform the affected facilities about the new standards, the Department had utilized a public outreach program. They had sent out a letter to their contacts at each affected facility. Additionally, the standards were published and commented upon at the federal level prior to any action on them by the Department. The Department would provide the Subcommittee with a list of the facilities affected by the new standards.
In response to questions by Representative Bruce, Mr. Lyons stated that the Department held a public hearing on these administrative regulations on June 26, 2003 and received no comments regarding them.
In response to questions by Senator Roeding, Mr. Lyons stated that the Department would need to update its outreach program to reflect the new notice, hearing, and thirty (30) day comment period requirements for administrative regulations, as established by Senate Bill 71 from the 2003 General Assembly.
In response to additional questions by Co-Chair Thayer, Mr. Lyons clarified his prior response regarding the financial impact of these administrative regulations. He stated that while these administrative regulations did not establish new fees, the industry would incur additional costs to implement the controls that were necessary to comply with the stricter emission standards.
Co-Chair Thayer stated that he urged the Department to follow-up with the Subcommittee regarding these administrative regulations by providing them with the list of affected facilities. Additionally, he recommended that in the future, the Department be more forthcoming in responding to the Subcommittee's questions about the financial impact of proposed administrative regulations.
Mr. Alteri stated that because the stricter standards were required by the federal government, the affected facilities would incur the costs of complying with them regardless of whether the standards were adopted at the state level. If the state did not adopt the requirements, they would be enforced by federal inspectors instead of the state.
A motion was made and seconded to approve the following amendments: (1) to amend the STATUTORY AUTHORITY and the NECESSITY, FUNCTION, AND CONFORMITY paragraphs to specify citations; (2) to amend Section 1 to alphabetize definitions; and (3) to amend various sections to comply with the drafting and format requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
New Source Performance Standards
401 KAR 60:005. 40 C.F.R. Part 60 standards of performance for new stationary sources. A motion was made and seconded to approve the following amendments: (1) to amend the STATUTORY AUTHORITY and the NECESSITY, FUNCTION, AND CONFORMITY paragraphs to specify citations; (2) to amend Section 1 to alphabetize definitions; and (3) to amend various sections to comply with the drafting and format requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
General Standards of Performance
401 KAR 63:002. 40 C.F.R. Part 63 national emission standards for hazardous air pollutants. A motion was made and seconded to approve the following amendments: (1) to amend the STATUTORY AUTHORITY and the NECESSITY, FUNCTION, AND CONFORMITY paragraphs to specify citations; (2) to amend Section 1 to alphabetize definitions; and (3) to amend various sections to comply with the drafting and format requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
Public Protection and Regulation Cabinet: Department of Insurance: Health Insurance Contracts
806 KAR 17:460. Requirements for autism benefits for children. Glenn Jennings, Deputy Commissioner, represented the Department.
In response to questions by Co-Chair Thayer, Mr. Jennings stated that the amendments to this administrative regulation merely added definitions supported by insurers and consumer groups. They did not modify the current level or cost of care for an autistic child.
A motion was made and seconded to approve the following amendments: to amend Section 3 to comply with the drafting and format requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
Cabinet for Health Services: Certificate of Need
900 KAR 6:030. Certificate of need expenditure minimums. John Gray, Executive Director, represented the Cabinet.
In response to a question by Co-Chair Thayer, Mr. Gray stated that this administrative regulation made it easier for hospitals and other health care providers because it increased the capital expenditure minimum amount that triggered the Certificate of Need requirements.
A motion was made and seconded to approve the following amendments: to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph and Sections 1 and 2 to change references from July 1, 2003, to the effective date of this administrative regulation, to comply with KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
Department for Public Health: Health Services and Facilities
902 KAR 20:014 & E. Effect of previous denial or revocation on applications for a license to operate a health facility or service. Alex Reese, Office of Inspector General, represented the Department.
A motion was made and seconded to approve the following amendments: to amend the RELATES TO and NECESSITY, FUNCTION, AND CONFORMITY paragraphs and Sections 1 to 4 to comply with the drafting and format requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
Department for Medicaid Services: Medicaid Services
907 KAR 1:011 & E. Technical eligibility requirements. Jesse Williams, Branch Manager, Debra Bahr, Medicaid Pharmacy Manager, and Frank Persinger, Financial Manager Director, represented the Department.
A motion was made and seconded to approve the following amendments: (1) to amend Section 1 to correct a statutory citation; (2) to amend Sections 2, 3, 4, 5, and 10 to comply with the drafting and format requirements of KRS Chapter 13A; and (3) to amend Section 10 to clarify what was meant by “good cause”. Without objection, and with agreement of the agency, the amendments were approved.
907 KAR 1:018 & E. Reimbursement for drugs. A motion was made and seconded to approve the following amendments: to amend Sections 2 and 3 to comply with the drafting and format requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
907 KAR 1:805 & E. Breast and cervical cancer eligibility for Medicaid. This regulation had no amendments and was approved.
Commission for Children with Special Health Care Needs: Kentucky Early Intervention System
911 KAR 2:120 & E. Kentucky Early Intervention Program evaluation and eligibility. Trish Howard, Executive Staff Advisor, and Eric Friedlander, Director, represented the Commission.
A motion was made and seconded to approve the following amendments: (1) to amend the RELATES TO and STATUTORY AUTHORITY paragraphs to correct statutory citations; (2) to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph to clearly state the necessity for and function served by this administrative regulation, as required by KRS 13A.220(3)(f); (3) to amend Section 1 to specify requirements for IFSP (individual family service plan) meetings scheduled on or after January 1, 2004; (4) to amend Sections 1 and 2 to comply with the drafting and format requirements of KRS Chapter 13A; (5) to amend Section 3 to add the edition date for the periodicity schedule; and (6) to delete Section 4 because it conflicted with the effective dates for administrative regulations established in KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
911 KAR 2:130 & E. Kentucky Early Intervention Program assessment and service planning. A motion was made and seconded to approve the following amendments: (1) to amend the RELATES TO and STATUTORY AUTHORITY paragraphs to correct statutory citations; (2) to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph to clearly state the necessity for and function served by this administrative regulation, as required by KRS 13A.220(3)(f); (3) to amend Section 2 to specify requirements for IFSP (individual family service plan) meetings scheduled on or after January 1, 2004; (4) to amend Sections 1 and 2 to comply with the drafting and format requirements of KRS Chapter 13A; (5) to amend Section 3 to incorporate by reference the IFSP form required after January 1, 2004; and (6) to delete Section 4 because it conflicted with the effective dates for administrative regulations established in KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
911 KAR 2:200 & E. Coverage and payment for Kentucky Early Intervention Program services. A motion was made and seconded to approve the following amendments: (1) to amend the RELATES TO and STATUTORY AUTHORITY paragraphs to correct statutory citations; (2) to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph to clearly state the necessity for and function served by this administrative regulation, as required by KRS 13A.220(3)(f); (3) to amend Sections 1 to 6 to comply with the drafting and format requirements of KRS Chapter 13A; (4) to amend Section 5 to clarify payment provisions, including requirements regarding billing third party insurance prior to First Steps and for families potentially eligible for Medicaid; and (5) to delete Section 7 because it conflicted with the effective dates for administrative regulations established in KRS Chapter 13A.
Cabinet for Families and Children: Department for Community Based Services: Food Stamp Program
921 KAR 3:035. Certification process. Karen Doyle, Assistant Director, and Roseanne Barkley, Branch Manager, represented the Department.
In response to a question by Senator Roeding, Ms. Barkley stated that by changing the certification period, this administrative regulation potentially affected all 500,000 food stamp recipients. It would change the length of time they received their food stamp benefits.
A motion was made and seconded to approve the following amendments: to amend various sections to comply with the drafting and format requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
The Subcommittee and the promulgating administrative agencies agreed to defer consideration of the following administrative regulations to the next meeting of the Subcommittee:
Education Professional Standards Board: General Administration
16 KAR 1:040E. Teachers' National Certification Incentive Trust Fund.
Kentucky Employees' Retirement Systems: General Rules
105 KAR 1:380E. Minimum distribution.
General Government Cabinet: Boards and Commissions: Board of Occupational Therapy
201 KAR 28:010. Definitions and abbreviations.
201 KAR 28:020. General provisions.
201 KAR 28:030. Short-term practice of occupational therapy for persons practicing under KRS 319A.090(1)(e).
201 KAR 28:051. Repeal of 201 KAR 28:051.
201 KAR 28:070. Examination.
201 KAR 28:140. Unprofessional conduct and code of ethics.
201 KAR 28:180. Temporary permits.
Tourism and Development Cabinet: Department of Fish and Wildlife Resources: Game
301 KAR 2:083E. Transportation and holding of captive cervids.
Justice Cabinet: Department of Criminal Justice Training: Kentucky Law Enforcement Council: Kentucky Law Enforcement Council
503 KAR 1:160E. Department of Criminal Justice Training - Kentucky Police Corps basic training: graduation requirements; records.
Education, Arts and Humanities Cabinet: Board of Education: Department of Education: Office of Learning Programs Development: Office of Learning Support Services
704 KAR 7:050. Student discipline guidelines.
Public Protection and Regulation Cabinet: Kentucky Racing Commission: Thoroughbred Racing
810 KAR 1:027E. Entries, subscriptions, and declarations.
Cabinet for Health Services: Department for Public Health: Food and Cosmetics
902 KAR 45:065E. Tattooing.
Office of Inspector General: Inspector General
906 KAR 1:140. Validation and complaint investigation procedures for deemed hospitals.
Department for Medicaid Services: Medicaid Services
907 KAR 1:013E. Payments for hospital inpatient services.
907 KAR 1:160E. Home and community based waiver services.
907 KAR 1:604E. Recipient cost-sharing.
907 KAR 1:655E. Spousal impoverishment and nursing facility requirements for Medicaid.
The Subcommittee adjourned at 12:05 p.m. until September 9, 2003, at 10:30 a.m., in Room 149 of the Capitol Annex.