Call to Order and Roll Call
The first meeting of the Interim Joint Committee on Local Government was held on Wednesday, June 23, 2010, at 10:00 AM, in Room 171 of the Capitol Annex. Representative Steve Riggs, Chair, called the meeting to order, and the secretary called the roll.
Present were:
Members: Senator Damon Thayer, Co-Chair; Representative Steve Riggs, Co-Chair; Senators Walter Blevins Jr., Julian M. Carroll, Ernie Harris, Jimmy Higdon, Mike Reynolds, Elizabeth Tori, Johnny Ray Turner, and Robin L. Webb; Representatives Mike Denham, Derrick Graham, Richard Henderson, Charlie Hoffman, Brent Housman, Dennis Keene, Stan Lee, David Osborne, Arnold Simpson, Ken Upchurch, and Jim Wayne.
Guests: Senator Dan Seum; Representative Larry Clark; Representative Linda Belcher; Dawn Bellis, General Counsel, Tim House, Director, Division of Plumbing, Department of Housing, Buildings, and Construction; Bud Schardein, Executive Director, Mark Johnson, Chief Engineer, Brian Bingham, Regulatory Service Director, Metropolitan Sewer District; Hon. Hal Heiner, Louisville Metro Council (District 19); Bob Marrett and Chuck Kavanaugh, Developers to Create Jobs in the Louisville Metro District; Russell Salsman, Chief of Staff, Lynsey Womack, General Counsel, and Amy Barnes, Branch Manager of Coal Severance Department, Department for Local Government; and Holly Spade, Cabinet for Economic Development.
LRC Staff: Mark Mitchell, Joe Pinczewski-Lee, John Ryan, Kris Shera, Bryanna Carroll, Alicia Miller, Scott Jones, Rita Ratliff, Matt Niehaus, Stephanie Aschmann Spires and Ashlee McDonald.
Consideration of Referred Administrative Regulation
The committee considered referred Administrative Regulation 815 KAR 20:191 - establishes minimum plumbing fixture requirements for Kentucky buildings. Dawn Bellis, General Counsel, Department of Housing, Buildings and Construction (HBC), and Tim House, Director, Division of Plumbing, HBC, explained the regulation.
Mr. House stated that there were two reasons behind the changes to the administrative regulation. The first was due to the fact the Cabinet for Health and Family Services (CHFS) adopted the Food and Drug Administration code this past year that was effective May 1. Changes within that FDA code conflicted with the Plumbing Code. Mr. House stated that the Division of Plumbing had met with CHFS and the code committee to make the necessary changes so that the FDA and Plumbing Code did not conflict. The other change, Mr. House continued, was necessitated by the memorandum of agreement that CFHS and the Division of Plumbing had regarding restaurants with less than 12 seat occupancy. This memorandum allowed a small establishment that served food and had indoor seating; to also allow customers to use the half bathroom that was also used by employees. At the beginning of last year, CFHS had withdrawn from that memorandum of agreement which required any facility, new or existing, that was closed for 30 days before re-opening, to have an additional bathroom for men and women. The Division of Plumbing met with the Code Committee to discuss a change that would allow a facility that met the exceptions or criteria to have one unisex bathroom, if the establishment held less than 15 occupants. The area that this will affect the most Mr. House noted, would be the historical properties that are being turned into bakeries, or coffee houses, with seating.
Representative Riggs, in correcting a typo, made a motion to insert the word “not” before the word “locate” on page 12, item G, in the phrase “occupied mobile food units located within an existing permitted food establishment shall”. The motion was seconded by Senator Carroll and adopted by voice vote.
In response to a question from Senator Higdon about one restroom for establishments with less than 15 person occupancy, Mr. House said the primary difference between 15 person occupancy and 12 person occupancy is that the original memorandum counted the number of seats. Now, the occupant load is determined by the square footage of the establishment rather than the actual number of seats.
In response to a question from Representative Lee about changes and “grandfathering” being taken into account for the existing businesses, Mr. House said that within the changes, existing installations are given options so that existing business would not have to change the plumbing to meet the FDA code. Mr. House stated that CFHS took no issues with the changes.
In response to a question by Representative Lee, Mr. House stated that the language within CFHS’s regulation gives the local health department the ability to determine if an upgrade in plumbing is needed when a business re-opens after a 30 or more day closure.
In response to a question from Representative Lee about any type of analysis that has been done to show the difference in the code that the state has been using versus the new proposed FDA code, Mr. House said he was not aware of any.
In response to a question from Representative Denham, Mr. House stated that the new regulation would not affect the existing stores.
In response to a question from Representative Henderson about changes initiated at the determination of the local health departments, Mr. House said he was correct.
In response to a question from Representative Henderson about a certain set of guidelines or parameters that the local health departments follow, Mr. House said that since each department was responsible for their own inspections, he could not answer that.
In response to a question from Representative Henderson about what would happen to the small local business that may not have a tenant for several months, Mr. House clarified that if a building is vacant for 30 days, whether there is being work done or not, the building must be brought up to code. Ms. Bellis added that they have received several compliments and recommendations regarding the new regulations.
Senator Tori stated that she had great concern with the new regulations and the governments’ input into the regulations.
Senator Higdon noted that the regulation just allowed certain businesses to keep operating with just one restroom.
Mr. House stated that the biggest issues on which they received complaints were relating to the historical buildings. To meet the codes there would have to be separate male and female restroom facilities. However, with the agreement for the 1-15 person limits, they may only need one unisex restroom.
Representative Riggs stated that the committee will compile a list of concerns and findings and report them to Legislative Research Commission.
2010 HB 221: Regional Wastewater Initiative
Senator Thayer explained that he did not bring House Bill 221 up before the Senate State and Local Government Committee in the 2010 Regular Session because he still had several questions and concerns. A large amount of his district is Sanitation District 1 (SD 1). He noted that SD 1 was a regional approach to wastewater and rainwater. In relaying his experiences with SD 1, Senator Thayer stated that SD 1 is faced with a “Rain Tax”. This tax is applied to property owners, where they are charged a fee for their impervious surfaces. For example, they are charged a fee for the size of their roof, or the size of their blacktop driveway. SD 1 was not responsive to rate payer’s legitimate question concerning fees for non-service. He also noted that SD 1 has increased fees 15% each year for 2 years. He said his concern was that these fees were put in place by an appointed, unelected board and then approved by the county judges/executive and not the fiscal court. Senator Thayer added that attempts should be made to get more public input in setting rates.
Senator Thayer stated that he would like a brief explanation of the bill since the Senate members have not heard this bill yet.
Representative Linda Belcher, sponsor of HB 221, explained that she has worked on this bill with various group for several years to fine-tune the language of the bill. She added that HB 221 was an effort for Kentucky Communities to preserve and protect water quality as well as to share the capital and operating costs of the facilities.
Representative Clark noted that he started to work on this bill 6 years ago with Representative Larry Belcher. He thanked Louisville Metro Council person Stuart Benson for his efforts regarding this bill. Representative Clark also thanked other groups that supported the effort.
Representative Clark explained that there is Federal money available for regional approaches. He further noted that the regional commission sets the rate for their treatment, but the local governments will set the rate for the operation of the plants to include capitol construction. Representative Clark acknowledged that the small sewer treatment plants’ abilities were becoming out-moded.
Bud Schardein, Executive Director, Louisville Metropolitan Sewer District, (MSD) said MSD’s participation is from a technical stand-point and that regional facilities and utilities are the future of water quality and preservation. Mr. Schardein stated that environmental and water quality begins with the preservation of the secondary streams if the goal is to preserve the main stems of water bodies. He noted that because of more stringent federal standards, putting wastewater streams with limited flow will become too expensive and that a regional approach is the answer to this problem.
In response to a question from Senator Carroll regarding Senator Thayer’s concerns about non-elected persons being responsible for rate setting, Mr. Schardein noted MSD’s situation. He explained that MSD’s board members are appointed and are done so in a balanced way—geographically and politically. He further noted that board members can be removed if they fail to perform. Mr. Schardein said that this legislation calls for the same procedures. The primary job of the board members in this legislation would be to set the true rate of treating the wastewater, he continued, and that because this commission is not a for-profit enterprise or a taxing district, the commission members will have no other responsibilities.
Acknowledging Senator Thayer’s concerns with the financial model of SD 1, Mr. Schardein said the bill’s model is completely different. This bill model is based upon the regional approaches used in the Allegheny County Sanitary Consortium in Pennsylvania, where all the members own the facilities. He continued to say that the present treatment capacity of several package treatment facilities in Louisville Metro is limited. Mr. Schardein stated that there are incentives on a federal level, such as receiving federal money.
In response to a question from Senator Carroll about a fee or tax that will have to be paid if one is not connected to this service, Mr. Schardein said that only members will pay.
Louisville Metro Councilman Hal Heiner noted that the MSD lost 2,000 private jobs. He discussed the relationship of the cost of treating wastewater put into limited flow streams and the currently limited ability to grow Bluegrass Commerce Park. With the sewage treatment plan, he continued, they are eligible for federal help and federal money for the regional projects. He indicated that the lowest cost solution would be to have a regional facility.
Senator Dan Seum indicated his support for HB 221, and introduced several guests. However, he expressed concern that he would be interested to know which governments will actually commit to the project.
Mr. Schardein stated that MSD has been drafting this bill for two years. He said it has received input from several counties and communities through monthly and bi-monthly meetings
In response to a question from Representative Graham about the two fastest growing counties in the project area not wanting to participate or had not yet committed, Representative Clark said that if this is built, that because of anticipated future growth pressures, the hesitant counties may end up wanting to join.
In response to a question from Representative Graham about counties opting out of the legislation/utility agreement, Mr. Schardein stated that counties could opt out once they pay their portion of the debt service.
In response to a question from Senator Thayer about HB 221 dealing with storm water, Mr. Schardein said that HB 221 only deals with the sanitary sewers.
In response to a question from Senator Higdon about a definition including storm water, Mr. Schardein clarified that the inclusion of that water waste accounts for the infiltration of storm water that occurs in every sanitary sewer.
Representative Clark added that they are trying to do everything they can to capture the federal money that is being offered while it is still available.
In response to a question from Representative Riggs, Mr. Schardein explained that the collecting lines that run along streets or serve businesses, along with the local authorities can set their rate. It is based on the exact cost of getting the flow from the main area to the treatment facility.
Representative Riggs noted that the individual customer would not be doing business with the regional commission, but that the regional commission would charge a fee for its service to the local wastewater treatment facility, which would then decide how much to charge the individual customer.
Representative Wayne commended Representatives Belcher and Clark on their work regarding HB 221. He explained that the reason he voted against the bill before was for the same concerns that Senator Thayer had mentioned. Representative Wayne stated that this bill has improved tremendously since these areas of concern were addressed and compromises were made. He mentioned several areas of improvement in the bill. Representative Wayne noted that he advocates coordination of planning and development of infrastructure. He wants a regional and local coordination of planning because he is concerned with the transportation areas.
Senator Webb noted the increasing costs of water treatment, and indicated that facility citing and accounting provisions were important to her.
Senator Webb stated that she would like to hear from the Division of Water and the Public Service Commission, either in a committee meeting or privately, so she can have a better understanding of this project.
Legislative Review of Executive Order 2010-429 relating to the Local Government Economic Development Fund
Russell Salsman, Chief of Staff, Department for Local Government, stated that this Executive Order was intended to simplify the Coal Severance Program.
In response to a question from Senator Webb about other Single County Coal Severance issues, Holly Spade, Cabinet for Economic Development, said that in 2004 when Single County was transferred over, it was decided to keep the multi-county program at Economic Development because it involved the industrial parks.
In response to a question from Representative Graham, Lynsey Womack, General Counsel, Department for Local Government, said that it was originally intended to be included in Senate Bill 231, however, it was inadvertently left out. She explained that SB 231 was the Cabinet for Economic Developments’ entire reorganization bill, and the section codifying the executive order was inadvertently not included.
There was a motion by Representative Riggs, seconded by Senator Thayer and adopted by voice vote to approve Executive order 2010-429.
Representative Riggs announced that the committee would not be meeting in July. He noted, however, that there would be a meeting in August.
There being no further business, the meeting was adjourned at 12:02 p.m.