Call to Order and Roll Call
The 3rd meeting of the Interim Joint Committee on Natural Resources and Environment was held on Thursday, September 3, 2015, at 1:00 PM, in Room 149 of the Capitol Annex. Senator Jared Carpenter, Chair, called the meeting to order, and the secretary called the roll.
Present were:
Members: Senator Jared Carpenter, Co-Chair; Representative Jim Gooch Jr., Co-Chair; Senators C.B. Embry Jr., Chris Girdler, Ernie Harris, Paul Hornback, Ray S. Jones II, John Schickel, Brandon Smith, Johnny Ray Turner, Robin L. Webb, and Whitney Westerfield; Representatives Hubert Collins, Tim Couch, Jim DuPlessis, Chris Harris, Reginald Meeks, Marie Rader, John Short, Kevin Sinnette, Fitz Steele, and Jim Stewart III.
Guests: Mr. Bruce Scott and Mr. Tony Hatton, Energy and Environment Cabinet; Mr. Steve Towler, Boyd County Judge Executive; Mr. Sean Borst, Citizens for Boyd County Environmental Coalition; Mr. David Flaig; Commissioner Greg Johnson and Dr. Karen Waldrop, Kentucky Department of Fish and Wildlife Resources.
LRC Staff: Tanya Monsanto, Stefan Kasacavage, and Kelly Blevins.
A quorum being present, the minutes from the July 2, 2015 meeting were approved.
Problems Faced by Farms from Depredating Deer and Interpreting Implementation
of 2014 House Bill 448
Mr. David Flaig, Ms. Trish Flaig, and Representative Addia Wuchner identified themselves for the record. Mr. David Flaig explained the problems he had with growing crops on the farmland that he leases from an out-of-state owner. The principal problem is that the county has one of the largest deer populations and the deer are eating all the crops. A large portion of the harvest is lost to deer, and it takes too long to implement the process to shoot deer under the depredating animal statutes in KRS Chapter 150. The nonresident tenant needs the right to shoot deer and to kill bucks as well as does. Representative Wuchner added that Boone County is the number one county for deer population.
In response to a legislator’s remarks that the process is too complicated, there has been little action on this matter, and the deer cause insurance damage, Mr. Flaig remarked that when there are that many deer, there will be problems. One legislator remarked that hunting is a management tool, and the stakeholders could introduce a management plan in Boone County.
In response to a legislator’s question about how much of the crop is lost to deer and whether there is a coyote population in Boone County, Mr. Flaig responded that about 10 percent is lost and that he does not know the coyote population.
One legislator asked if the raccoon population harms the crops and how many farm tags had been received. Mr. Flaig responded that raccoons do not harm the crops and that he has not received farm tags.
In response to a legislator’s question about the number of acres Mr. Flaig farms and whether he can keep enough pressure on the deer so the animals do not harm the crops, Mr. Flaig responded that he has about 800 acres and that the pressure is not enough to keep the deer out of the fields.
One legislator remarked that it is good that property rights remain with the landowner and hunting rights can be leased to whomever the owner designates. In response to a question about whether the process is too slow, Mr. Flaig replied that the Kentucky Department of Fish and Wildlife Resources is very slow to respond. The tenant and owner can shoot without permission from the department. The nonresident tenant should have the same right when renting a property. A nonfarming tenant has more rights than the nonresident farming tenant.
One legislator stated that the deer population is out of control and something should be done to protect the farmer. Another legislator remarked that the deer population in Kentucky has improved over the years and asked the department how this issue will be handled with the nonresident tenant farmer.
Commissioner Greg Johnson and Dr. Karen Waldrop, Kentucky Department of Fish and Wildlife Resources, and Jeff Harper, Kentucky Farm Bureau, discussed how farmers handle depredating animals and the changes made to KRS Chapter 150 through House Bill 448. Mr. Harper stated that, when the farmers dealt with animals harming crops, the depredating animal statutes were sufficient. There were not many nonresident tenant farmers, but farming practices have changed. House Bill 448 in 2014 addressed many of the concerns raised by farmers. The department develops a request form and has 30 days to respond, but the landowner retains the right to determine how the land is used.
Dr. Karen Waldrop stated that Kentucky has about 900,000 deer of very high quality. Kentucky is one of the top five trophy buck states, and that status creates revenue and jobs. As the deer population has grown, so has damage from the deer. KRS 150.170 allows landowners or the landowner’s designee to kill deer if they cause damage to property or crops. House Bill 448 also changed the reporting requirements. All inedible parts of the animal are turned over to the department or destroyed.
Dr. Waldrop described a series of ways to handle animal depredation, such as in-season and out-of-season tags and unlimited antlerless permits. When there is a problem with depredating animals, there will be a site visit. The tenant must have pursued other options. There is a designee form, and all deer must be telechecked. Commissioner Johnson added that the owner can designate Mr. Flaig to kill the deer. The department has issued 5,500 in-season tags and worked with about 500 farmers. The department is dedicated to managing the deer population properly.
One legislator commented that many farmers are not compensated via crop insurance, and there should be a fund to compensate farmers who suffer losses from animal damage. In response to a question about whether the farmer can get tags in the cold months prior to planting because there is no time for farmers to hunt during summer months to keep pressure on the deer, Dr. Waldrop replied that tags can be obtained for damage with a complaint form on file. That makes it easy for the farmer to obtain out-of-season tags.
One legislator commented that it is unfair to penalize hunters to help farmers because of crop damage. The damage statewide is only 5 to 10 percent. Dr. Waldrop added that hunters pay for the resources to manage the wildlife and the hunters are concerned about paying crop damage fees.
One legislator asked whether out of state tags could be useful in controlling the population and funding some sort of crop damage program. Commissioner Johnson responded that 800 acres with 10 percent damage would be around $9,600 and the cost of full recovery for farmers could be very large.
Out-of-State Solid Waste and its impact on landfills and local communities
Bruce Scott, Commissioner Department of Environmental Protection and Tony Hatton, Division Director Waste Management discussed the problem of managing wastes transported from out-of-state. Mr. Hatton described the requirements to locate a solid waste landfill in Kentucky and the statutes that govern solid waste management. Shipments of solid waste into Kentucky come principally from New Jersey and New York, where the cost of disposal is much higher. There are 35 states with varying laws that decide where local wastes go within the state, but those laws are complicated in that interstate wastes are protected by the Commerce Clause of the United States Constitution. Kentucky has 27 landfills, and only a few take out-of-state wastes. Kentucky’s waste breakdown into landfills is 78 percent municipal solid waste, and the remainder is industrial and special wastes. Kentucky sends seven percent of its waste to out-of-state landfills. Roughly 36 percent of Kentucky’s waste is out-of-state waste. Most New York and New Jersey waste is deposited in Big Run landfill, which has created odor problems. Big Run has been receiving waste for about 23 years and disposes of 4,500 tons per year of wastes. Ninety percent of the waste is from out-of-state, and some of that waste is sewage sludge. However, after concerns with odor and pathogens, Big Run took measures to upgrade the gas collection system, reduce sludge intake, and cap landfill areas. Big Run’s permit expires in 2016, and citizens are concerned about permit renewals.
After a question about why Kentucky is sending waste out-of-state, Mr. Hatton responded that, if a county is located on a border, it might be more economical to dispose of the waste out-of-state. Commissioner Bruce Scott added that tipping fees in Kentucky are generally lower than surrounding states.
One legislator commented that the management of the landfill has been woefully neglectful, and the company that owns the landfill has not responded to concerns in a timely manner. Commissioner Scott added that the cabinet will hold another hearing in Boyd County. In response to a question about whether there were problems with the changes to solid waste laws in 1991, Mr. Hatton replied that there were no problems. However, out-of-state waste on rail and transfer station layovers is a big issue with out-of-state waste, and the sludge problem has added a new concern with methane.
One legislator asked if there was medical waste and whether Kentucky has sought to raise the tipping fee for landfills. Commissioner Scott replied that medical waste is not a concern, but untreated wastewater sludge creates odors, and any call to raise the tipping fee will be made by a new administration rather than the commissioner’s office.
In response to a question about whether Kentucky can impose a tariff on incoming waste, Commissioner Scott said he did not know. Some states have determined the amount of local waste that can be generated. One legislator added that the stench from Big Run landfill is overwhelming and asked whether regulation over the landfill could be made more stringent. Commissioner Scott stated that counties have host agreements and solid waste management plans to control landfills, and there is a lot of latitude with what a county can do.
In response to a question about why the cabinet has not shut down Big Run if the company was noncompliant in addressing violations issued by the cabinet, Commissioner Scott said that many facilities are noncompliant and are still open. The cabinet tries to move a business into being compliant rather than forcing them to shut down. There is a transition period to closure of a landfill, and the owner and the county cannot just walk away from the problem.
Boyd County Judge Executive Steve Towler described the problems with the Big Run landfill when he came into office. In 2005, the ordinance was amended to increase solid waste into Big Run, the host agreement was dropped, and there was an unenforceable ordinance. Sean Borst with Citizens for Boyd County Environmental Coalition added that odor violations increased as did citizen complaints about pathogens and other health concerns related to the landfill. Kentucky is cheap, and this landfill was a target by other states looking to dispose of waste. There have been 6,000 complaints about the landfill, and there are concerns with the spray that is being used to control the odor because it may have health implications.
In response to a question about the distance from the school to the Big Run landfill, Mr. Sean Borst said about one mile. One legislator asked whether the landfill can be regulated through air quality regulations and whether the owners of the landfill are local citizens. Judge Towler replied the owners are not local, and the county needs help at the state level for a quicker process to closure.
Judge Towler said that rail service into the landfill is being abolished, but this happened after the county wanted to close the landfill. Ninety percent of Big Run’s waste is from out-of-state, and 75 percent is transported into the landfill by train six days a week.
In response to a question about the company’s name and headquarters, Judge Towler said the company is EnviroSolutions from Manassas, Virginia. The landfill is located off I-64 in Boyd County and is visible from the highway.
One legislator questioned whether there is an enforcement problem if the cabinet does not fix the problem with Big Run landfill, and another legislator commented that solid waste container legislation was filed last year to address this issue. There may be a need to have inspectors for landfills.
Representatives from the Energy and Environment Cabinet requested an amendment to two administrative regulations 402 KAR 3:050 and 805 KAR 1:100. After a motion and a second, both amendments were approved.
There being no further business, the meeting was adjourned at 3:10 PM EDT.