It is less clear, however, whether permits that have been issued for facilities not yet constructed are affected, and what suffices as "physical construction." Numerical paragraph 2 of the amended order suspends "all, air, water and waste permits" for facilities for which physical construction has not commenced, and appears broad enough to suspend issued permits for those facilities not yet under construction. I have sent, by fax, the attached letter seeking clarification.
The Amended Order is a step in the right direction, giving substance to the June 19, 2001 Moratorium and halting issuance of any new air, waste or water permits, including those applications pending as of June 19, 2001.
Suspension of issued permits for facilities not yet under construction would recapture for potential further review many of the permits issued for 24 facilities not halted by the permitting moratorium in 2001. I will inform you of any clarification I receive on this point.
Kentucky Resources Council, Inc.
Post Office Box 1070
Frankfort, Kentucky 40602
(502) 875-2428 phone (502) 875-2845 fax
January 28, 2002
Hon. Paul Patton
Frankfort, KY 40601
Re: Amended Order On Moratorium "On Permits For New Power Plants"
Dear Governor Patton:
I have today received a copy of the Amended Order dated January 23, 2002, Executive Order 2002-95. I appreciate the clarification in numerical paragraph 3 that the moratorium applies to halt issuance of any new air, water or waste permits for electric generating facilities regardless of the date of filing of those applications, so that it will apply to pending permit applications even where that application was filed prior to the June 2001 moratorium date.
The language of numerical paragraph 2 of the Amended Order raises a new question where it directs that the Natural Resources and Environmental Protection Cabinet "suspend . . . all air, water and waste permits for electric generating facilities including, but not limited to, electric generating units, with respect to which physical construction has not commenced as of the effective date of this Order."
It appears that paragraph 2 suspends issued permits for facilities that have not commenced construction, since issuance of all pending permit applications is already precluded under numerical paragraph 3. The Council supports this suspension, and believes that it is appropriate to suspend issued permits for facilities and units not yet constructed, in order to prevent further development at sites under permits that may prove inadequate to meet the siting profess that emerges from the 2002 session.
For those pending applications, does the amended order suspend the application processing, so that if there were a comment period open or a hearing scheduled, that comment period would remain open and the hearing would be delayed? The clarification is important since there is at least one application of which I am aware where the comment period has been opened on an air permit and a hearing scheduled.
Finally, with respect to that same paragraph, is it intended that "physical construction" include ceremonial dirt-turning, or must the physical construction be the actual, continuous program of construction of the structure? There are facilities that may have engaged in the former activity but for which actual bona fide construction has not begun. If construction is to be used as a cutoff for which issued permits will be suspended, then the regulatory definition of "construction" should be used to require genuine, rather than symbolic, construction.
I appreciate your clarification of these points and your efforts to give the public the "breathing room" to establish siting standards and a siting process before this new generation of facilities are constructed.
cc: Secretary Bickford, NREPC
Tom Dorman, PSC