Program Review and Investigations Committee




<MeetMDY1> September 11, 2008


The<MeetNo2> Program Review and Investigations Committee met on<Day> Thursday,<MeetMDY2> September 11, 2008, at<MeetTime> 10:00 AM, in<Room> Room 131 of the Capitol Annex. Senator Ernie Harris, Chair, called the meeting to order, and the secretary called the roll.


Present were:


Members:<Members> Senator Ernie Harris, Co-Chair; Representative Reginald Meeks, Co-Chair; Senators Charlie Borders, Vernie McGaha, Joey Pendleton, Dan Seum, Brandon Smith, and Katie Stine; Representatives Dwight D. Butler, Ruth Ann Palumbo, Rick Rand, Arnold Simpson, and Ken Upchurch.


Guests:  Michael Miller, Director, Division of Curriculum, Kentucky Department of Education.  Mark Dennen, Kentucky Heritage Council Acting Executive Director and State Historic Preservation Officer.  Dr. Fred E. Coy, Jr., Co-author of Rock Art of Kentucky. Dr. George M. Crothers, Director of William S. Webb Museum of Anthropology and Office of State Archaeology, University of Kentucky. Michael French, Senior Archaeologist Project Manager, AMEC Earth & Environmental, Louisville. Dr. David Pollack, Site Protection Program Administrator and Director of the Kentucky Archaeological Survey, Kentucky Heritage Council. David M. Waldner, Director, Kentucky Transportation Cabinet’s Division of Environmental Analysis.



LRC Staff:  Greg Hager, Committee Staff Administrator; Rick Graycarek; Christopher Hall; Colleen Kennedy; Van Knowles; Jean Ann Myatt; Rkia Rhrib; Tara Rose; Cindy Upton; Stella Mountain, Committee Assistant; Program Review and Investigations Committee Staff.  Mike Clark, LRC Staff Economist.


Upon motion made by Senator Pendleton and seconded by Senator McGaha, the minutes of the August 14, 2008 meeting were approved by voice vote, without objection.


Senator Harris noted that a representative of the Kentucky Department of Education (KDE) was present to address questions raised at the August 14 meeting at which the report on school textbooks was approved.


Michael Miller said that a role of the Division of Curriculum is to organize the Textbook Commission and the selection of textbooks that are eligible to be placed on the State Multiple List.  He said schools are not required to report to the division as to which textbooks they purchase. Mr. Miller said that concern was raised at the committee’s August 14 meeting that some students do not have their own copies of textbooks for homework or study purposes.  He noted high school textbooks are funded through local funds or other sources, not state appropriations. 


Senator Seum said that he had raised questions about textbooks because he knew of a school in Jefferson County in which students must share textbooks and homework has to be divided over two days. A high percentage of the school’s students do not have home computers, so online access to books would not help. He asked why they cannot have textbooks for these students.


Mr. Miller said those decisions are made locally. He said that textbooks used by students on a rotating basis can be efficient, for long-term projects and for certain content areas where textbooks are rarely used, but that the lack of textbooks can cause frustration in other cases.


Senator Seum asked whether the state has any control over this.


Mr. Miller replied that the state appropriates no money for high school textbooks.


Senator Seum asked whether KDE gives districts guidelines concerning textbooks.


Mr. Miller said the State Textbook Commission produces a list of textbooks that meet the Kentucky standards. Districts may choose to not purchase from that list, in which case they need to submit an off-list notification form.


Senator Stine repeated her question from the August 14 meeting about the relationship between textbook publishers and ACT/SAT publishers. She asked whether it was possible that high performing schools based on those tests are using textbooks from the same companies that create the tests. This would mean that students are learning what they need to answer the test questions.


Mike Clark said that, to his understanding, ACT and SAT are independent, nonprofit organizations and are not affiliated with the publishers.  He said some of the publishers develop assessments though.


Senator Stine asked whether McGraw-Hill is an example and whether there is a correlation between publishers of textbooks that are selected and assessments.


Mr. Clark replied that McGraw-Hill is a major publishing company that develops a number of assessments. He said the Textbook Commission chooses textbooks that match the requirements that Kentucky is expecting educators to meet, so there would be a correlation between what was covered in the textbooks and what was covered on assessments.


Senator Harris asked whether there is any state appropriation for middle and elementary schools.


Mr. Miller said that there is an appropriation for kindergarten through eighth grade textbooks.


Senator Harris asked whether Mr. Miller knew how many classrooms had widescreen televisions and other technology for instructional purposes.


Mr. Miller said that he did not know but would provide the information.


Senator Seum suggested a program in which parents would pay a fee upfront to rent textbooks for the year and would get their money back if books are returned.


Representative Meeks introduced the presentations on preservation of Kentucky’s cultural resources by noting that the Commonwealth has more preserved sites of antiquities than any other state and a nationally known staff who are called upon to be resources for other states. 


Mark Dennen, the acting Executive Director and State Historic Preservation Officer with the Kentucky Heritage Council, gave a PowerPoint presentation about the Heritage Council and its role in helping to protect and preserve Kentucky’s historic and cultural resources. 


Mr. Dennen said the National Historic Preservation Act (NHPA) of 1966 established the Section 106 process, the National Register of Historic Places, and provided a federal-state framework for creating state historic preservation offices.  This led to the creation of the Kentucky Heritage Commission in 1966, later renamed the Kentucky Heritage Council.


He said the council’s concept of historic preservation has changed over time.  Its original focus was on single buildings, but has evolved to include main streets, roadside architecture, prehistoric and historic archaeological sites, and cultural and rural landscapes. Within state governments, state historic preservation offices, (SHPO), are organized differently depending on the state. The Kentucky Heritage Council is an agency of the Tourism, Arts and Heritage Cabinet.  It has 20 professional staff in many disciplines. The SHPO is the official federal liaison regarding historic preservation in the state.


Mr. Dennen said the Heritage Council’s efforts are focused in three program areas: site protection, site identification, and site development.  Site protection includes Section 106 review, which requires that all federally funded, licensed, or permitted projects are reviewed by the State Historic Preservation Office to determine their effect on and potential threats to historic properties.  It also includes the agency’s archaeological component and the Kentucky Archaeological Survey, a partnership of the Heritage Council and the University of Kentucky Department of Anthropology. 


According to Section 106 of the NHPA, the goals of the Section 106 review process include identification, which is to determine if historic structures or archaeological sites over 50 years old are located within a project’s area of potential effect; evaluation, to determine if historic structures or archaeological sites listed in or eligible for listing in the National Register of Historic Places will be adversely impacted by a project; and mitigation, to avoid or minimize adverse effects to significant historic structures or archaeological sites. If mitigation is not an option, it is determined how the adverse effects to these properties will be addressed, either through recording or documenting them or by excavation.


Site identification coordinates statewide surveys and maintains a comprehensive GIS inventory of prehistoric and historic sites located throughout the state. The division coordinates planning for agency programs and statewide preservation efforts, and nominates sites to the National Register of Historic Places. 


Mr. Dennen said Kentucky has the fourth highest number of National Register listings, more than 3,200, encompassing 41,000 districts, sites, and structures. Kentucky also has 30 National Historic Landmarks, many of them being archaeological sites. More than 94,000 prehistoric and historic sites and historic structures have been surveyed in all Kentucky counties through the Heritage Council’s survey initiative.


Site development oversees education and training, incentives, and technical and design assistance to encourage protection of and investment in historic places.  This includes administration of federal and state tax credit programs, the Kentucky Main Street Program, and educational programs including training in traditional craftsman and preservation arts. 


Mr. Dennen continued by saying that the Kentucky Heritage Council initiated the Kentucky Main Street Program in 1979 and it is one of its most successful programs. Today the council works with more than 100 communities and they are the oldest Main Street Program in the nation. He described the benefits of preserving historic buildings in downtowns.


He said Kentucky has successfully utilized the federal historic rehabilitation tax credit program for many years, and the first round of Kentucky state historic preservation tax credits, which he described, were awarded in 2006. 


Mr. Dennen said the agency continues to emphasize diverse cultures’ contributions to Kentucky’s history. Heritage Council programs include providing staff and technical assistance to the Kentucky African American Heritage Commission, the Kentucky Native American Heritage Commission, the Underground Railroad Advisory Council, and the Kentucky Military Heritage Commission. 


Mr. Dennen said that 23,000 archaeological sites with evidence of early native cultures have been recorded, and only 4% of the state has even been surveyed.


Mr. Dennen mentioned that looting of prehistoric sites continues to be a serious problem, and he gave examples. In the case of Indian Head Rock, last fall a group from Portsmouth, Ohio, pulled the rock from the Ohio River near South Shore in Greenup County.  Three men have been indicted by a grand jury and more indictments are expected.


Mr. Dennen said that existing legislation establishes public policy regarding the preservation of archaeological sites and objects of antiquity.  The Federal Antiquities Act makes it a felony to disturb or destroy archaeological sites on public lands without a permit. The State Antiquities Act prohibits the willful damage or destruction of archaeological sites on lands owned or leased by the state, state agencies, counties, or municipalities.  The act requires anyone who discovers a site to report it to the University of Kentucky Department of Anthropology.  The Kentucky Cave Protection Act makes it illegal to disturb or damage cave surfaces or materials found inside caves, including archaeological remains.  It is a misdemeanor to violate sections of these acts.


Mr. Dennen said there are thousands of burial grounds and cemeteries around the state; some are known to the local communities and some are unidentified. Many cemeteries are inadvertently discovered during construction, projects which could be avoided if developers would routinely check with local historical societies and planners before initiating projects.


Senator Harris asked whether the 94,000 identified sites are prehistoric sites.


Mr. Dennen said that they are sites of all kinds, prehistoric and historic, archaeological and built.


Senator Harris asked how a site is defined and whether a site could be as simple as finding a few arrow heads on a farm, which could be evidence of an Indian village.


Dr. David Pollack, Site Protection Program Administrator and Director of the Kentucky Archaeological Survey, Kentucky Heritage Council, said that of those 94,000 sites, 70,000 of them are buildings. There are 24,000 archaeological sites that would be potentially important sites but not every site is considered to be significant. He said the site described by Senator Harris has potential and could be significant. 


Sen. Harris asked whether there was a Web site that lists National Register of Historic Places by county.


Dr. Pollack said that the National Register of Historic Places has a Web site that lists by state, but without much detail. The Kentucky Heritage Council can provide more information like descriptions, photographs, and the reasoning for the listing in the National Register.


Representative Simpson asked whether cost is taken into account when making decisions about moving historic structures.  He referred to the 12th Street project in Covington in which two structures were being relocated at high cost. He said funds could be better employed to provide roadway improvements, given that Kentucky’s road funds are low.


Mr. Dennen replied that cost is taken into account. The costs of preservation, rehabilitation, or relocation of the structure are balanced against losing a structure. He said that for the 12th Street Corridor, buildings are being relocated to preserve as examples of the neighborhood. 


Dr. Pollack said that for the project, the Heritage Council, the Kentucky Transportation Cabinet, the Federal Highway Administration, and agencies paying for it must come to an agreement as to all the different components involved, and price is taken into consideration.


Representative Simpson said that he thought the system was broken.  He said that he has been a resident of that neighborhood for most of his life, he knows the structures, and the cost of relocation was not justified.


Representative Butler asked how trading and trafficking in Native American artifacts is regulated. 


Dr. Pollack replied that if they were obtained illegally, it is still illegal to trade in them.  If artifacts are obtained legally, there are no penalties.  If an artifact was obtained illegally and it is taken across state lines, it becomes a federal offense. 


Representative Butler asked how they determine that.  For example, an artifact might have been in someone’s family for years or it came from a site that was not correctly handled.


Dr. Pollack replied that is part of the problem for law enforcement, proving that something was obtained illegally.


Representative Meeks asked Dr. Pollock to explain what is allowed on private property relating to the collection of items and what is required of the property owner.


Dr. Pollack said it is permissible to surface collect on private property with the permission of the landowner, which can include looting an archaeological site as long as one does not encounter burials.  He said Representative Meeks has been involved with legislation to better regulate this.


Senator Seum asked whether the two buildings moved in the Northern Kentucky road expansion were designated historic buildings prior to the project. 


Mr. Dennen replied that they had been part of a national registered district.


Dr. Pollack noted that the agreement to move the buildings was signed about 8 to 9 years ago.


Senator McGaha asked whether there is any liability to real estate companies or auctioneers who would auction off artifacts, not knowing whether they have been excavated in a legal manner.  He asked whether there is a liability if someone from another state purchases one and takes it across state lines.


Mr. Dennen said it is a difficult question because it depends on the strength of the laws and how one prosecutes the laws and what evidence there is.


Senator McGaha suggested that the intent could play a role in how this was interpreted. If someone at an auction buys something, the intent is not to do anything illegally but rather to legally purchase something.


Dr. Pollack said he would suspect that that person would not be charged if he cooperates with law enforcement and helps law enforcement track down the guilty person.


Mr. Waldner, the Director of the Division of Environmental Analysis for the Kentucky Transportation Cabinet, said the cabinet conducts surveys for historic properties, both above ground structures and archaeological sites, on any project in which there is federal involvement. The objective for all the building projects is to identify historic and archaeological resources as early as possible to accomplish avoidance.  When avoidance is not feasible or cannot be achieved, and a project results in an adverse effect to a historic property, mitigation of the effect is required. The mitigative measures are determined in  consultation among parties, including the Transportation Cabinet, Federal Highway Administration, Kentucky Heritage Council, and if they choose to participate, the Advisory Council on Historic Preservation. Mitigation costs range from thousands to millions of dollars.


Mr. Waldner said the cabinet also manages the Transportation and Enhancement Program that makes millions of dollars available to local communities.  Many of these funds are used to restore and improve historic properties.


Representative Simpson asked how they define historic properties.


Mr. Waldner said that U.S. Department of the Interior’s regulations outline how historic properties are determined. The cabinet has historic preservation professionals that determine whether or not properties within an area of influence of a project might be considered historic. That information is coordinated with the Kentucky Heritage Council and it is then determined whether a structure meets those standards for being considered eligible for the National Register and if so, then the Section 106 protection measures are enforced.


Representative Simpson asked to be provided with a copy of a definition of historic properties if possible.


Dr. Crothers said the Office of State Archaeology keeps the state records on registered archaeological sites and issues permits for archaeological work or collecting artifacts on state, county, or municipal land. The office is also involved in administering the Cave Protection Act, which prohibits collecting archaeological or paleontological materials from cave sites. He said the office is responsible for locating historic and prehistoric sites and identifying them. They issue about 600 new archaeological site numbers per year and process about 400 new surveys, which entails identifying standing historic structures and identifying archaeological resources. In cooperation with the Kentucky Archaeological Survey, location information recently has been digitized and is in a geographical information system. Because of looting problems and of landowner private property concerns, the locations of archaeological sites are not available to the general public. 


Dr. Crothers said that his office has to respond to calls when discoveries are made during construction.  He added that the entire staff of the Office of the State Archaeology is 0.7 people, consisting of himself at 30% of his job duties and one assistant director at 40% of her job duties.


Representative Meeks asked whether it is usual for a state to have 0.7 people responsible for all the duties and how are the other states structured.


Dr. Crothers said that it varies by state. In a number of states, the state archaeologist is with a university.  There is usually some state appropriation for the office, which varies. Some offices have a staff of 50 but that would include people who do the mitigation and excavation. 


Dr. Coy said that his interest in petroglyphs and pictographs of the American Indians was initiatived 45 years ago when he was unable to locate much information on   reported finds in Kentucky. He found only 16 sources that mentioned a petroglyph that had been made prior to that time. Now in conjunction with the State Archaeologist and the Kentucky Heritage Council, more than 70 rock art or petroglyph sites have been recorded in the state; 62 of them are on the National Register, and these may be found online.  About 12 years ago, the Heritage Council published his book, which describes 62 of the rock art sites in Kentucky.


Dr. Coy said that the study of petroglyphs and pictographs has developed into a scientific discipline. He distributed a handout listing problems involved in trying to save petroglyph sites.  He said that educating the public will help.


Dr. Pollack said that the Kentucky Archaeological Survey, jointly administered with the Department of Anthropology at the University of Kentucky, does a great deal of public education. Grade school students go through several of their programs. They also produce educational materials. They have completed a video series that can be viewed online.  They also produce curricula for schools and offer teacher workshops under the national Project Archaeology program. Another part of his office’s duties is to deal with cemeteries that are being impacted inadvertently by construction.  He said they do not have anybody who is solely dedicated to responding to such calls and the number of calls their office receives is increasing. 


Senator Stine asked Dr. Pollock whether he knew if the Attorney General’s Office has some oversight of cemeteries.


Dr. Pollack said that he knows they often assist people with ingress and egress, and that they also enforce the cemetery laws that say that the person who owns a cemetery is responsible for maintaining it. 


Mr. French said that consulting firms that actively do archaeological investigations perform a full range of cultural resource services.  The companies are hired, for example, by the Kentucky Transportation Cabinet to identify what known and previously owned cultural resources, whether archaeological sites or standing structures, might be located within a project area.  They also make assessments whether or not they believe additional research is warranted, and whether or not sites are significant. They always operate in consultation with the archaeologist on staff of the agency they are working for.


Representative Meeks asked how many consultants there are in Kentucky.


Mr. French said there are about 100. There are four or five major firms. At AMEC they have 30 full-time employees on staff in Kentucky, and about another 100 on-call seasonal employees who help with projects during the summertime. 


Representative Meeks asked whether some of these consultants could respond to some of the needs and calls for preservation that the state is getting.


Mr. French replied that most archaeologists will volunteer and help out as needed but it would really be difficult for a private consultant dedicated to full-time work to do that. 


Senator Harris announced that the next committee meeting is on October 9, with a scheduled report on reentry of felons into society on the agenda.  He asked staff to pass out the list of suggested study topics that have been received. 


He asked for a moment of silence in recognition of victims of the terrorist attacks in New York and Washington D.C. in 2001.


The meeting was adjourned at 11:50am.