Kentucky Resources Council, PO Box 1070, Frankfort, KY 40602 Phone [502] 875-2428

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PO Box 1070, Frankfort, KY 40602  Phone 502.875.2428, Fax 502.875.2845


Kentucky Resources Council, Inc.

Post Office Box 1070

Frankfort, Kentucky 40602

(502) 875-2428 phone (502) 875-2845 fax

e-mail FitzKRC@aol.com

On January 11, 2002, Governor Paul Patton issued Executive Order 2002-50, Relating to the Establishment of A Moratorium On Permit For New Power Plants.

According to press reports, the Governor indicated at a Press Conference announcing an amendment to and the extension of the moratorium, original issued for a period of six months on June 19, 2001 and extended once before, that the new Order would have application to all new electrical generating units that did not possess all needed permits and that had not commenced construction.

This broadening of the scope of the moratorium to include pending facilities would give real meaning to the moratorium, which when issued in June, 2001 was a hollow act since it was limited to proposed power plants whose permits were received after that date, and not to the 24 then-pending applications for power plants at 22 new sites. KRC, along with legislators and others, had urged the administration to broaden the application of the moratorium when extending it, in order to give the General Assembly time to consider and implement a siting process in advance of the decision to approve these facilities.

The broadened moratorium described by Governor Patton would be a relief to many communities concerned with the individual and cumulative impact of new power plants. However, the language of Executive Order 2002-50 does not mesh with the description announced on January 11. Instead, the order carries forward the language of the June 19, 2001 Executive Order, and modifies it to lift the ban on acceptance of new applications for air, waste and water permits, while barring issuance of those permits. The amended order also exempts plants using landfill gas with a capacity of 10mW or less.

By letter to the Governor dated January 14, the Council requested clarification as to whether the moratorium applies to those units for which environmental permit applications were pending as of June 19, 2001. KRC also requested clarification of whether the Cabinet, which is required under the amended order to accept permit applications, was required to conduct technical review of the permit applications, which would involve time and expense to the state and communities reviewing applications for facilities that might never be approved under a new siting process. That letter is attached. The Council urges the administration to clarify the language of Executive Order 2002-50 to make the order conform to the scope as described in the press conference, barring issuance of any new state air, water or air permits for new fossil fuel and solid waste fuel-fired plants until after July 15, 2002, and exempting small landfill gas and hydro units.

Kentucky Resources Council, Inc.

Post Office Box 1070

Frankfort, Kentucky 40602

(502) 875-2428 phone (502) 875-2845 fax

e-mail FitzKRC@aol.com

January 14, 2002

Hon. Paul E. Patton

State Capitol

Frankfort, Kentucky 40601 By fax only

Dear Governor Patton:

I am writing to request clarification regarding the intended scope of Executive Order 2002-50, issued January 11, 2002. After reviewing the language of the Executive Order, I am unclear as to these matters:

1. Whether the moratorium applies to those units for which environmental permit applications were pending as of June 19, 2001?

As of that date there were some 24 new units proposed in 22 new locations, and in various stages of permitting and/or construction.

While some facilities have received air permits, and others waste and air permits, few have received all environmental permits (air, water withdrawal, wastewater disposal, solid and special waste disposal). Is it your intention to include these pre-June 19, 2001 applications in the extended moratorium for all that still have not obtained a needed permit?

The impression left from your press conference was that the scope would be broad enough to include all such facilities, and to exempt only those that had all permits and had commenced physical construction. Such a broadening of the June 2001 moratorium would give more meaning to the moratorium, and allow the legislature to consider the issues in advance of the permitting and siting of this significant group of new units.

I would urge you to clarify this matter by an amended Executive Order, since the language of 2002-5 does not readily admit to such a reading, but rather appears instead to merely carry forward the earlier moratorium, which did not place any limitations on then-pending applications.

2. The second question relates to the effect of the moratorium. Numerical

paragraph 2 indicates that the Cabinet shall "accept all applications" but shall not issue permits for said facilities. Is it the intent of the Order to require the Cabinet to process the applications, but then to withhold issuance? It would seem that such an expenditure of time and resources on applications for facilities that may not meet legislative criteria would be wasted, and that applications should be accepted and administrative completeness determined, but technical review deferred pending the outcome of the session. This matter needs clarification, so that the agency knows how to manage accepted applications.

3. The final question addresses the intent of numerical paragraph 4. I read that language to exempt only landfill gas-powered units of 10 mW capacity or less, rather than any unit with 10 mW or less capacity; however others have read the language more broadly. KRC supports the landfill gas exemption and associated language in numerical paragraph 4, and would recommend clarification that small hydroelectric projects that meet like criteria and are utilizing existing dam structures also be exempted from the moratorium. Clarification as to the intended scope of that exemption would be of aid to those interested in such projects.

Thank you in advance for your clarification of these three points. I appreciate in particular your re-thinking of the moratorium scope issue and apparent intent to extend the moratorium to include pre-June 19, 2001 facilities that are not yet fully permitted and under construction.


Tom FitzGerald


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