Call to Order and Roll Call
The February meeting of the Administrative Regulation Review Subcommittee was held on Monday, February 11, 2013, at 1:00 PM, in Room 149 of the Capitol Annex. Representative Johnny Bell, Chair, called the meeting to order, and the secretary called the roll.
Present were:
Members: Senator Ernie Harris, Co-Chair; Representative Johnny Bell, Co-Chair; Senators Joe Bowen, and Sara Beth Gregory; Representatives Robert R. Damron, Jimmie Lee, and Tommy Turner.
Guests: Jennifer Jones, Kentucky Retirement Systems; Larry Disney, Jim Grawe, Kentucky Real Estate Appraisers Board; Peter Goodmann, Randall Payne, Bruce Scott, Division of Water; Ann D’Angelo, Susan Chaplin, John Houlihan, Randall Royer, Alice Wilson, Jeff Wolfe, Transportation Cabinet; Dawn Bellis, Greg Feck, David Moore, Housing, Buildings and Construction; Lane Boldman, Sierra Club; Tom Fitzgerald, Kentucky Resources Council; Beverly May, Ted Withrow, Kentuckians for the Commonwealth; and Art Williams, Kentucky Conservation Committee.
LRC Staff: Dave Nicholas, Donna Little, Emily Caudill, Sarah Amburgey, Emily Harkenrider, Karen Howard, Betsy Cupp, and Laura Napier.
Administrative Regulations Reviewed by the Subcommittee:
FINANCE AND ADMINISTRATION CABINET: Kentucky Retirement Systems: General Rules
105 KAR 1:140. Employer's administrative duties. Jennifer Jones, Interim General Counsel, represented the systems.
In response to questions by Co-Chair Harris, Ms. Jones stated that the systems went live with the new electronic system approximately eighteen (18) months ago. This administrative regulation was intended to clarify the electronic contribution process now that it had been in place long enough to fine tune procedures.
A motion was made and seconded to approve the following amendments: to amend the TITLE and Sections 1 and 5 to comply with the drafting and formatting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
GENERAL GOVERNMENT CABINET: Kentucky Real Estate Appraisers Board: Board
201 KAR 30:030. Types of appraisers required in federally-related transactions; certification and licensure. Larry Disney, executive director, and James Grawe, assistant attorney general, represented the board.
In response to questions by Co-Chair Harris, Mr. Disney stated that the Consumer Protection Act required Kentucky to adopt federal requirements, which were being established in these administrative regulations. These administrative regulations were not more stringent than the federal requirements because most affected appraisers worked at the federal level for Freddie Mac or Fannie Mae; therefore, more stringent requirements would be unnecessary.
A motion was made and seconded to approve the following amendments: (1) to amend the TITLE and Sections 2 through 4 to comply with the drafting and formatting requirements of KRS Chapter 13A; (2) to amend the STATUTORY AUTHORITY paragraph to add a citation; and (3) 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. Without objection, and with agreement of the agency, the amendments were approved.
201 KAR 30:050. Examination and experience requirement.
A motion was made and seconded to approve the following amendments: (1) to amend the STATUTORY AUTHORITY paragraph to add a citation; (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; and (3) to amend Sections 1 through 3 to comply with the drafting and formatting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
201 KAR 30:070. Grievances.
A motion was made and seconded to approve the following amendments: (1) to amend the STATUTORY AUTHORITY paragraph to correct a statutory citation; and (2) to amend Sections 1 through 5 to comply with the drafting and formatting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
201 KAR 30:110. Appraiser roster, transmission, fees, deletions, notification, and hearing.
In response to questions by Representative Lee, Mr. Disney stated that affected stakeholders had been advised of the fee increase. The fee amount was established at the federal level, and all fees were transferred to the federal subcommittee. The board did not have the ability to retain any portion of the fees.
A motion was made and seconded to approve the following amendments: (1) to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph to comply with the drafting requirements of KRS Chapter 13A; and (2) to amend Sections 1 and 3 to make technical corrections. Without objection, and with agreement of the agency, the amendments were approved.
201 KAR 30:190. Educational requirements for certification.
A motion was made and seconded to approve the following amendments: (1) 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; and (2) to amend Sections 1 through 8 to comply with the drafting and formatting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
ENERGY AND ENVIRONMENT CABINET: Department for Environmental Protection: Division of Water: Water Quality Standards
401 KAR 10:001. Definitions for 401 KAR Chapter 10. Peter Goodmann, assistant director; Randall Payne, environmental scientist III; and R. Bruce Scott, commissioner, represented the division.
401 KAR 10:026. Designation of uses of surface waters.
TRANSPORTATION CABINET: Office of Audits: Division of Road Fund Audits: Motor Carriers
601 KAR 1:146. Fair market rental or lease value of vehicles operated pursuant to a U-drive-it permit. Ann D’Angelo, assistant general counsel; Randall Royer, director of road fund audits; and Alice Wilson, executive director, represented the division.
A motion was made and seconded to approve the following amendments: to amend Sections 3 and 4 to comply with the formatting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
Office of the Secretary: Department of Aviation: Airport Zoning Commission
602 KAR 50:030. Jurisdiction of the Kentucky Airport Zoning Commission. Ann D’Angelo, assistant general counsel; Susan Chaplin, attorney; and John Houlihan, administrator, represented the commission.
In response to a question by Co-Chair Harris, Mr. Houlihan stated that the local planning and zoning committees established protections for airspace. The commission worked with the Federal Aviation Administration to establish protections pertaining to fly zone safety and navigation, such as preventing obstructions near airport take off and landing areas.
A motion was made and seconded to approve the following amendments: (1) to amend the STATUTORY AUTHORITY paragraph to add a statutory citation; (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; and (3) to amend Sections 1 and 2 to comply with the drafting and formatting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
602 KAR 50:050. Airport zoning map.
A motion was made and seconded to approve the following amendments: (1) to amend Section 2 to clarify that the commission’s adoption of the airport zoning map shall serve as the official designation of the area of the commission’s jurisdiction and to add language requiring the commission to keep a copy of the map, in accordance with KRS 183.867; (2) to amend Section 3 to add language stating that the commission, rather than the airport administrator, shall notify a local zoning body of a new designation of jurisdiction, in accordance with KRS 183.867; (3) 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; and (4) to amend Sections 1, 2, 3, and 5 to comply with the drafting and formatting requirements of KRS Chapter 13A and for clarity. Without objection, and with agreement of the agency, the amendments were approved.
Department of Highways: Traffic
603 KAR 5:050. Uniform traffic control devices. Ann D’Angelo, assistant general counsel, and Jeff Wolfe, director, represented the department.
PUBLIC PROTECTION CABINET: Department of Housing, Buildings and Construction: Division of Building Codes Enforcement: Kentucky Building Code
815 KAR 7:070. The Kentucky Certified Building Inspector Program. Dawn Bellis, general counsel, and Gary Feck, director, represented the division.
In response to a question by Co-Chair Harris, Ms. Bellis stated that these administrative regulations did not relate to sprinkler system requirements.
A motion was made and seconded to approve the following amendments: (1) to amend the RELATES TO paragraph to add a statutory citation; and (2) to amend Sections 1 through 10 to comply with the drafting and formatting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
815 KAR 7:110. Criteria for expanded local jurisdiction.
A motion was made and seconded to approve the following amendments: to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph and Sections 1 through 4 to comply with the drafting and formatting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
Division of Plumbing: Plumbing
815 KAR 20:195. Medical gas piping installations. Dawn Bellis, general counsel, and David Moore, director, represented the division.
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 comply with the drafting and formatting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
The following administrative regulations were deferred to the March 12, 2013, meeting of the Subcommittee:
KENTUCKY COMMUNITY AND TECHNICAL COLLEGE SYSTEM: Board of Emergency Medical Services: Board
202 KAR 7:520. Allocation of block grant funding assistance for emergency medical services.
202 KAR 7:530. Emergency Medical Services data collection, management, and compliance.
ENERGY AND ENVIRONMENT CABINET: Department for Environmental Protection: Division of Water: Water Quality Standards
401 KAR 10:030. Antidegradation policy implementation methodology.
401 KAR 10:031. Surface water standards. Peter Goodmann, assistant director; Randall Payne, environmental scientist III; and R. Bruce Scott, commissioner, represented the division. Lane Boldman, Sierra club; Tom FitzGerald, director, Kentucky Resources Council; Beverly May, Kentuckians for the Commonwealth; Art Williams, executive director, Kentucky Conservation Committee; and Ted Withrow, Kentuckians for the Commonwealth, appeared in opposition to this administrative regulation.
Mr. FitzGerald stated that Kentucky Resources Council was opposed to the proposed agency amendment to this administrative regulation because the division was proposing substantive changes without a public hearing and stakeholder input. The agency amendment revised requirements regarding limits of the pollutant, selenium. Kentucky Resources Council requested that this administrative regulation at least be deferred to the March meeting of this Subcommittee. This was only the second time in thirty-three (33) years that the division proposed a Kentucky-specific limit for a pollutant, rather than adopting the federal guidance limit.
Co-Chair Bell stated that KRS 13A.320(2)(b)4. required an agency amendment at the Subcommittee to “be filed with the regulations compiler at least three (3) workdays prior to the meeting…” The proposed agency amendment complied with KRS 13A.320(2)(b)4.
In response to a question by Senator Bowen, Mr. FitzGerald stated that Kentucky Resources Council was opposed both to the way this amendment was proposed and to the limits themselves. Technical changes proposed at the Subcommittee were philosophically appropriate, but filing a substantive change without proper public review circumvented the intent of the KRS Chapter 13A process. The process was even more important than the council’s objection to the actual selenium limits being proposed because the integrity of the entire administrative regulation process was at stake.
Mr. Williams stated that the Kentucky Conservation Committee agreed with Kentucky Resources Council that the proposed agency amendment circumvented the public input process. The Kentucky Conservation Committee requested that this administrative regulation be deferred to the March meeting of the Subcommittee.
Ms. May stated that Kentuckians for the Commonwealth was opposed to the proposed selenium limit amendments because the requirements were so complicated and cumbersome as to preclude coal companies from being held responsible for selenium contamination. Ms. May lived near Wilson Creek, which had experienced selenium contamination from coal mining activities.
Ms. Boldman stated that data and letters had been entered into the record regarding the science of selenium testing. This administrative regulation did not comply with the Clean Water Act, which required forty-five (45) days for public consideration of amendments. The selenium limit was too high to protect fish and wildlife and would allow for harmful bioaccumulation of selenium. The limit was unenforceable.
Mr. Withrow stated that he was a member of Kentuckians for the Commonwealth and a former employee of the Division of Water. He stated that selenium was lethal in an aquatic environment in the limits proposed in the agency amendment. The science was flawed. The division would not be in a position to test fish tissue because the fish would not survive the proposed limit. Stakeholders did not have adequate time for a meaningful review of the proposed limit changes, and deferral to the March meeting of the Subcommittee was requested. Mr. Withrow closed by reading the mission statement of Kentuckians for the Commonwealth, which included varied goals of the group, not just of an environmental nature.
In response to a question by Representative Lee, Mr. FitzGerald stated that this administrative regulation was being processed uniquely because the standard in the proposed agency amendment was so drastically different as to render the previous public hearing and public comment period moot, at least as related to selenium. The process was not transparent. Experts had not discussed and debated the issue, and the science was not properly peer reviewed.
Senator Bowen requested that Mr. Withrow repeat the mission statement of Kentuckians for the Commonwealth and stated that he was offended by a specific portion of the mission statement. Senator Bowen believed that the phrase, “when companies and wealthy pay their fair share of taxes” insinuated that these groups were not currently paying their fair share of taxes. As a businessman, Senator Bowen was offended by that broad-sweeping accusation.
Mr. FitzGerald stated that he had earlier in his testimony understated the significance of the selenium limit change. The proposed change was over ten (10) times higher than the previous standard.
Co-Chair Bell emphasized the need to balance environmental concerns and Kentucky’s need for jobs.
Mr. Scott stated that Mr. FitzGerald was correct that this was the second time in recent memory that the division proposed a Kentucky-specific limit, rather than using U.S. EPA’s guidance limit. The federal program required a forty-five (45) day public comment period; however, that requirement was explicitly waived if a state had a codified public comment process such as that established in KRS Chapter 13A. The division filed its proposed agency amendment prior to the three (3) workday deadline established by KRS 13A.320(2)(b)4. The division welcomed and encouraged public comments. The selenium standard was not unenforceable because a five and zero tenths micrograms per liter (5.0 µg/L) trigger threshold was part of the agency amendment. The standard was significant with the addition of the trigger threshold. The acute level for selenium was adopted in 1990, but that standard had been vacated at the federal level in 1996. Most surrounding states had deleted that standard. During the public comment period, U.S. EPA was the only commenter opposed to the initial amendment to delete the standard altogether. The division agreed to defer pursuant to the stakeholders’ requests; however, response to stakeholder comments would not be submitted in a formal Statement of Consideration because that part of the process was over.
Representative Lee thanked the division for agreeing to defer and encouraged all agencies to provide for as much public input as possible.
Representative Turner requested that, if this administrative regulation was deferred, staff would follow up with any selenium data and impact studies available from the Department of Fish and Wildlife Resources.
Co-Chair Bell clarified that drinking water (domestic water supply) standards were separate from water quality standards for selenium. The division should strive for consensus with stakeholders with regard to selenium.
A motion was made and seconded to defer consideration of this administrative regulation to the March meeting of the Subcommittee. Without objection, and with agreement of the agency, deferral was approved.
CABINET FOR HEALTH AND FAMILY SERVICES: Department for Public Health: Division of Maternal and Child Health: Kentucky Early Intervention System
902 KAR 30:001. Definitions for 902 KAR Chapter 30.
Department for Medicaid Services: Commissioner's Office: Payment and Services
907 KAR 3:170. Telehealth consultation coverage and reimbursement.
Other Business: Subcommittee staff announced the following resignations: Senator Givens and Senator Kerr resigned from the Subcommittee, and Senator Bowen resigned as Subcommittee Co-Chair. Subcommittee staff welcomed new Subcommittee members, Senators Sara Beth Gregory and Ernie Harris and Representative Tommy Turner.
Senator Bowen made a motion, seconded by Senator Gregory, to nominate Senator Harris as Senate Co-Chair and to cease nominations. Senator Harris was elected Senate Co-Chair by unanimous voice acclamation of those members present.
Co-Chair Harris stated that this was his first opportunity to serve on this Subcommittee, and he looked forward to learning more about administrative regulations.
Co-Chair Bell welcomed Co-Chair Harris and thanked Senator Bowen for his service as Senate Co-Chair.
Senator Gregory also welcomed the opportunity to serve on this Subcommittee and stated that administrative regulations were an important part of Kentucky governance.
Representative Turner thanked Co-Chair Bell for recognizing him and appreciated the opportunity to serve on this Subcommittee.
The Subcommittee adjourned at 2:15 p.m. until March 12, 2013, at 10 a.m.