ENERGY AND ENVIRONMENT CABINET

Kentucky State Board on Electric Generation and Transmission Siting

(As Amended at ARRS, September 12, 2014)

 

††††† 807 KAR 5:110. Board proceedings.

 

††††† RELATES TO: KRS 61.870-61.844, 278.702, 278.704, 278.706, 278.708, 278.710, 278.712, 278.714, 278.716

††††† STATUTORY AUTHORITY: KRS 278.702(3), 278.706(2)(c), 278.712(2)

††††† NECESSITY, FUNCTION, and CONFORMITY: KRS 278.702(3) authorizes the Kentucky State Board on Electric Generation and Transmission Siting. KRS 278.702(3) requires the board to promulgate administrative regulations to implement KRS 278.700 to 278.716. KRS 278.712(2) requires the board to promulgate administrative regulations governing a board hearing. KRS 278.706(2)(c) requires an applicant seeking to obtain a construction certificate from the board to give proper notice of his intention to the public. This administrative regulation establishes procedures related to applications, filings, notice requirements, hearings, and confidential material.

 

††††† Section 1. General Matters Pertaining to All Formal Proceedings. (1) Address of the board. Written communication shall be addressed to Kentucky State Board on Electric Generation and Transmission Siting, 211 Sower Boulevard, PO Box 615, Frankfort, Kentucky 40602-0615.

††††† (2) Form of papers filed. A pleading in a formal proceeding shall be printed or typewritten on one (1) side of the paper only, and typewriting shall be double-spaced.

††††† (3) Signing of pleadings. Every pleading of a party represented by an attorney shall be signed by at least one (1) attorney of record in his individual name and shall state his address.

††††† (4) Service of process. If a party has appeared by attorney, service upon the attorney shall be deemed proper service upon the party.

 

††††† Section 2. Notice of Intent to File Application. (1) At least thirty (30) days but no more than six (6) months prior to filing an application to construct a carbon dioxide transmission pipeline, merchant electricity generating plant, or nonregulated electric transmission line, an applicant shall file at the offices of the Public Service Commission, 211 Sower Boulevard, Frankfort, Kentucky 40602, a Notice of Intent to File Application. If an applicant fails to file an application within six (6) months of the filing of the Notice of Intent to File Application, the Notice shall automatically expire without further notice to the applicant.

††††† (2) A Notice of Intent to File Application shall include:

††††† (a) The name, address,[and] telephone number, and electronic mail address of the person who intends to file the application;

††††† (b) A brief description of the proposed construction that will be the subject of the application;

††††† (c) A description of the location of the proposed construction, including:

††††† 1. The name of the city and county in which the construction will be proposed;

††††† 2. The street address and latitude and longitude of the site of the construction to be proposed; and

††††† 3. If the proposed construction will be within the boundaries of a city;

††††† (d) The address of the planning and zoning commission, if any, with jurisdiction over the site of the construction to be proposed;

††††† (e) If applicable, a description of the setback requirements of the planning and zoning commission with jurisdiction over the site of the construction to be proposed; and

††††† (f) If the planning commissionís setback requirements are less stringent than those prescribed by statute, or if the planning commission with jurisdiction, if any, has not established setbacks, a statement as to if a deviation from the statutory setback requirements will be requested in the application.

 

††††† Section 3. Board Applications and Subsequent Filings. (1) An applicant shall file an original and ten (10) paper copies, and one (1) copy in electronic format, of its application at the offices of the Public Service Commission, 211 Sower Boulevard, Frankfort, Kentucky 40602.

††††† (2) A paper copy of an application shall:

††††† (a) Be in a bound volume with each document tabbed; and

††††† (b) Contain a table of contents that lists, for each document enclosed,

††††† 1. The number of the tab behind which the document is located;

††††† 2. The statutory provision pursuant to which the document is submitted; and

††††† 3. The name of the person who will be responsible for responding to questions concerning information contained in the document.

††††† (3) Administrative staff for the board shall determine if the application is administratively complete and shall inform the applicant of its determination by letter.

††††† (4) The secretary shall reject for filing any document that does not comply with an administrative regulation in 807 KAR Chapter 5.

 

††††† Section 4. Intervention and Parties. (1) A person who wishes to become a party to the proceeding before the board may, by written motion filed no later than thirty (30) days after the application has been submitted, request leave to intervene.

††††† (2) A motion to intervene shall be granted if the movant has shown:

††††† (a) That he has a special interest in the proceeding; or

††††† (b) That his participation in the proceeding will assist the board in reaching its decision and would not unduly interrupt the proceeding.

 

††††† Section 5. Confidential Material. (1) Material on file with the board shall be available for examination by the public unless the material is determined to be confidential pursuant to subsection (2) of this section.

††††† (2) Procedure for determining confidentiality.

††††† (a) A person requesting confidential treatment of material related to his application shall file a petition with the executive director. The petition shall:

††††† 1. In accordance with the Kentucky Open Records Act, KRS 61.870 to 61.884, establish each basis upon which the petitioner believes the material should be classified as confidential; and

††††† 2. Attach one (1) copy of the material that identifies, by underscoring, highlighting with transparent ink, or other comparable method, only the portion alleged to be confidential. A text page or portion thereof that does not contain confidential material shall not be included in the identification.

††††† (b) The petition, one (1) copy of the material identified by underscoring or highlighting, and ten (10) copies of the material with the portion for which confidentiality is sought obscured, shall be filed with the board.

††††† (c) The petition and a copy of the material, with only the portion for which confidentiality is sought obscured, shall be served on each party. The petition shall contain a certificate of service on each party.

††††† (d) The burden of proof to show that the material is exempt from the disclosure requirements of the Kentucky Open Records Act, KRS 61.870 to 61.884, shall be upon the person requesting confidential treatment.

††††† (e) A person may respond to the petition for confidential treatment. If a person responds to the petition, the person shall do so within five (5) days after it is filed with the board.

††††† (3) Pending action on the petition, the material specifically identified shall be temporarily accorded confidential treatment.

††††† (4) If the petition for confidential treatment of material is denied, the material shall not be placed in the public record for twenty (20) days to allow the petitioner to petition the board directly or to seek other remedy afforded by law.

††††† (5) Procedure for requesting access to confidential material filed in a proceeding.

††††† (a) A party to a proceeding before the board shall not cite confidentiality as a basis for failure to respond to a discovery request by the board or its staff or another party to the proceeding.

††††† 1. If a party responding to a discovery request seeks to have a portion or all of the response held confidential by the board, the party shall follow the procedure for determining confidentiality established in subsection (2) of this section.

††††† 2. A party's response to a discovery request shall be served upon each party, with only the portion for which confidential treatment is sought obscured.

††††† (b) If confidential protection is granted and if each party has not entered into a protective agreement, then a party may petition the board requesting access to the material on the basis that it is essential to a meaningful participation in the proceeding.

††††† 1. The petition shall include a description of any effort made to enter into a protective agreement.

††††† 2. Unwillingness to enter into a protective agreement shall be fully explained.

††††† 3.a. A party may respond to the petition.

††††† b. If a person responds to the petition, the person shall do so within five (5) days after it is filed with the board.

††††† 4. The board shall determine if the petitioner is entitled to the material[,] and the manner and extent of the disclosure necessary to protect confidentiality.

††††† (6) Request for access to records pursuant to KRS 61.870-61.884. A time period prescribed in this section shall not limit the right of a person to request access to a board record pursuant to KRS 61.870-61.884. Upon a request filed pursuant to KRS 61.870-61.884, the board shall respond in accordance with the procedure prescribed in KRS 61.880.

††††† (7) Procedure for requesting access to confidential material. A person denied access to a record requested pursuant to KRS 61.870-61.884 or to material deemed confidential by the board in accordance with the procedure established in this section, shall obtain the information only pursuant to KRS 61.870-61.884, and other applicable law.

††††† (8) Use of confidential material during a formal proceeding. Material deemed confidential by the board may be addressed and relied upon during a formal hearing. If confidential material is considered during a formal hearing, it shall be considered as established in the following procedure:

††††† (a) The person seeking to address the confidential material shall advise the board prior to the use of the material.

††††† (b) Except for members of the board or its staff, a person not a party to a protective agreement related to the confidential material shall be excused from the hearing room during direct testimony and cross-examination directly related to confidential material.

††††† (9) Material granted confidentiality that later becomes publicly available or otherwise shall no longer warrant confidential treatment.

††††† (a) The petitioner who sought confidential protection shall inform the executive director in writing if material granted confidentiality becomes publicly available.

††††† (b)1. If the executive director becomes aware that material granted confidentiality is publicly available or otherwise no longer qualifies for confidential treatment, he shall by letter so advise the petitioner who sought confidential protection, giving the petitioner ten (10) days to respond.

††††† 2. If the executive director becomes aware that material has been disclosed by someone other than the person who requested confidential treatment, in violation of a protective agreement or board order, the information shall not be [deemed to be]publicly available and shall not be placed in the public record.

††††† (c) The material shall not be placed in the public record for twenty (20) days following an order finding that the material no longer qualifies for confidential treatment to allow the petitioner to seek any remedy afforded by law.

 

††††† Section 6. Evidentiary Hearings. (1) Upon its own motion or on written motion of a party to a case before it, filed no later than thirty (30) days after an application has been filed, the board shall schedule an evidentiary hearing.

††††† (2) A party wishing to present an expert witness at an evidentiary hearing shall, no later than five (5) days prior to the hearing date, file with the board, with a copy to each party of record, the report prepared by the expert and a full description of the credentials qualifying the witness to testify as an expert on the subject matter for which he will testify.

††††† (3) No later than five (5) days prior to an evidentiary hearing, a party to the case shall file the name of each witness he expects to present at the hearing, together with a brief statement of each matter regarding which the witness will testify.

††††† (4) An evidentiary hearing shall be conducted before the board or before a person designated by the board to conduct a specific hearing.

††††† (5) Testimony before the board shall be given under oath or affirmation.

††††† (6) If an objection is made to the admission or exclusion of evidence before the board, the objecting party shall state briefly the basis for objection.

††††† (7) The board shall cause to be made a record of an evidentiary hearing.

 

††††† Section 7. Filing of Briefs. If applicable, a party of record shall file a brief no later than seven (7) days after the conclusion of the evidentiary hearing.

 

††††† Section 8. Local Public Hearings and Local Public Information Meetings. (1) A local public hearing or local public information meeting may be conducted before the board or before a person designated by the board to conduct a specific hearing;

††††† (2) A request for a local public hearing or local public information meeting shall be made in writing and shall be filed no later than thirty (30) days after a complete application is filed.

††††† (3) The board shall, at least fourteen (14) days before the hearing date, give notice of the hearing or local public information meeting to:

††††† (a) All parties to the proceeding;

††††† (b) The judge or executive of the county in which the construction of the facility is to be located;

††††† (c) The mayor of the city in which the facility is to be located, if applicable; and

††††† (d) The planning commission with jurisdiction over the area in which the facility is to be located, if applicable.

††††† (4) The board or its designated hearing officer shall accept unsworn, oral comment from any member of the public who provides his name and address on a sign-in sheet to be provided at the hearing or local public information meeting.

††††† (5) Within seven (7) calendar days after the local public hearing or local public information meeting, administrative staff for the board shall file in the official record of the case, with a copy to each party of record, a summary of public comments made at the local hearing or local public information meeting that:

††††† (a) Identifies each person who made oral comments; and

††††† (b) Summarizes the comments received.

 

††††† Section 9. Notice Requirements. (1) Notice of an evidentiary hearing. At least three (3) days before the hearing date, the applicant shall submit to the board proof that it has given notice of the hearing to each party and to the general public by publication in a newspaper of general circulation in the county or municipality in which the pipeline, plant, or transmission line is proposed to be located.

††††† (2) Notice of a local public hearing or local public information meeting. At least three (3) days before the hearing date or local public information meeting date, the applicant shall submit to the board proof that the general public has been provided notice of the hearing or local public information meeting in a newspaper of general circulation in the county or municipality in which the pipeline, plant, or transmission lines is proposed to be located.

††††† (3) An applicant giving public notice pursuant to KRS 278.706(2) shall include in the notice a statement that[the following information]:

††††† (a) A person who wishes to become a party to a proceeding before the board may, by written motion filed no later than thirty (30) days after the application has been submitted, request leave to intervene;

††††† (b) A party may, upon written motion filed no later than thirty (30) days after an application has been filed, request the board to schedule an evidentiary hearing at the offices of the Public Service Commission, 211 Sower Boulevard, Frankfort, Kentucky; and

††††† (c) A request for a local public hearing or local public information meeting shall be made by at least three (3) interested persons who reside in the county or municipal corporation in which the pipeline, plant, or transmission line is proposed to be located. The request shall be made in writing and shall be filed within thirty (30) days following the filing of a completed application.

 

DAVID L. ARMSTRONG, Chairman

††††† APPROVED BY AGENCY: June 10, 2014

††††† FILED WITH LRC: June 11, 2014 at 3 p.m.

††††† CONTACT PERSON: Stephanie Bell, Deputy Executive Director, Public Service Commission, 211 Sower Boulevard, P.O. Box 615, Frankfort, Kentucky 40602, phone (502) 564-3940, fax (502) 564-3460, email Stephanie.Bell@ky.gov.