Current through Register Vol. 50, No. 9, March 1, 2024
RELATES TO: KRS 61.870-61.844,
278.702,
278.704,
278.706,
278.708,
278.710,
278.712,
278.714,
278.716
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, 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
commission's 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 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:
(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.
STATUTORY AUTHORITY:
KRS
278.702(3),
278.706(2)(c),
278.712(2)