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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 Mountain Power Appeal  Posted: October 7, 2002

COMMONWEALTH OF KENTUCKY

KNOTT CIRCUIT COURT

CIVIL ACTION NO. ____________

PAULINE STACY PETITIONER

V. COMPLAINT AND PETITION FOR REVIEW

KENTUCKY STATE BOARD ON

ELECTRIC GENERATION AND

TRANSMISSION SITING,

Serve: Attorney General Ben Chandler

State Capitol

Frankfort, Kentucky 40601

Thomas M. Dorman, Executive Director

Public Service Commission

211 Sower Boulevard

Post Office Box 615

Frankfort, Kentucky 40602

Martin J. Huelsmann, Chair Ex officio

Ky. State Board On Electric Generation

and Transmission Siting

211 Sower Boulevard

Post Office Box 615

Frankfort, Kentucky 40602

and

KENTUCKY MOUNTAIN POWER, LLC.

Serve: BTH INC. LEXINGTON

2700 Lexington Financial Center

Lexington, Kentucky 40507-1749

Peter C. Brown, Esq.

Kentucky Mountain Power

2810 Lexington Financial Center

Lexington, Kentucky 40507

and

ENVIROPOWER, LLC. RESPONDENTS

Serve: BTH INC. LEXINGTON

2700 Lexington Financial Center

Lexington, Kentucky 40507-1749

Peter C. Brown, Esq.

Kentucky Mountain Power

2810 Lexington Financial Center

Lexington, Kentucky 40507

IN THE MATTER OF:

THE APPLICATION OF KENTUCKY MOUNTAIN POWER,

LLC / ENVIROPOWER, LLC FOR A MERCHANT POWER

PLANT CONSTRUCTION CERTIFICATE IN KNOTT COUNTY,

KENTUCKY NEAR TALCUM

SITING BOARD CASE 2002-00149

* * * * *

Comes the Petitioner, Pauline Stacy, and states as follows:

1. This complaint and petition for review is filed pursuant to the provisions of KRS 278.712, which provides for judicial review of determinations of the Kentucky State Board on Electric Generation and Transmission Siting (Siting Board). Petitioner seeks review of a September 5, 2002 determination by the Siting Board granting approval to the application of Kentucky Mountain Power LLC / EnviroPower LLC (hereafter "KMP") for a merchant power plant construction certificate in Knott County, Kentucky near Talcum. A copy of the determination appealed from is attached to this Complaint / Petition for Review.

2. KRS 278.712(5) provides that:

Any party to a proceeding held pursuant to this section or any final

determination pursuant to Section 6 of this Act may, within thirty (30)

days after service of the board's final ruling, bring an action against

the board in the Circuit Court of the county in which the facility is

proposed to be constructed to vacate or set aside the ruling on

grounds that the ruling is arbitrary, capricious, or otherwise unlawful

or unreasonable. Any party instituting an action for review of the

Board's ruling in the Circuit Court of the county in which the

facility is proposed to be constructed shall give notice to all parties

of record in the board's proceeding.

KRS 278.712(5) (2002).

3. This court has jurisdiction to hear this petition for review pursuant to KRS 278.712(5) inasmuch as the proposed electric generating plant is proposed to be constructed in Knott County, Kentucky.

4. This petition for review is timely, having been filed within thirty (30) days of service of the Siting Board's order and determination. A copy of the Certificate of Service indicating the service date of September 5, 2002 is attached.

5. The attached Certificate of Service identifies all parties of record to the proceeding.

6. Pauline Stacy was a party to the proceeding within the meaning of KRS 278.712(5), having been granted intervenor status by the Siting Board and having participated by filing direct testimony in the formal hearing held by the Siting Board pursuant to KRS 278.712 to review of the application for a construction certificate from KMP.

7. Pauline Stacy is a landowner and resident of Ary, Kentucky, whose property adjoins Kentucky 1087. Her mailing address is P.O. Box 386, Bulan, Kentucky 41722. She has suffered discomfort, annoyance and unreasonable interference with the use and enjoyment of her property due to coal haulage and site access to the proposed KMP site from haul roads utilized by coal companies entering the property from Kentucky 1087 in Ary. She is a person whose interests are or may be adversely affected by the KMP decision, within the meaning of the relevant statute, was a participant in the proceeding under KRS 278/712(5), and is thus a proper party to maintain this action seeking review of the Siting Board determination.

7. KRS 278.712(5) provides that on judicial review, this Court shall set aside or vacate a ruling by the Siting Board where it is shown that the ruling is arbitrary, capricious, or otherwise unlawful or unreasonable.

8. The Siting Board determination in Case No. 2002-00149 to approve the application of KMP for a merchant power plant construction certificate in Knott County, Kentucky was arbitrary and capricious and otherwise unlawful and unreasonable, for these reasons:

A. The Board failed to properly consider or to make required determinations concerning transmission lines that are proposed to be constructed for the purpose of linking the proposed power plant to the existing transmission grid, including both those lines proposed to be constructed and retained by the applicant and those to be constructed by the applicant and later transferred to another entity:

i. The Board failed to properly consider the transmission lines to be constructed by the applicant in order to support the connection of and movement of electrons from the facility to the existing transmission grid, as part of the "facility" for purposes of evaluation of the impacts of the transmission line routing on the public and the environment;

ii. The Board failed to require and to make available for public review sufficient information regarding the construction of such transmission lines, and erred as a matter of law in considering as complete an application for a facility that lacked required information regarding those aspects of the facility that included associated transmission line;

iii. The Board failed to make required determinations under the statute regarding those transmission lines as part of the determination to approve the facility siting.

B. The Board failed to impose conditions sufficient to assure that the use of Kentucky 1087 would be minimized in the construction and operation of the facility, and failed to protect the public including Ms. Stacy from adverse effects of the use of Kentucky 1087 by the proposed facility.

i. The Board failed to properly and adequately define those circumstances in which use of Kentucky 1087 for site access would be allowed as being "necessary" on an "emergency" basis;

ii. The Board failed to properly and adequately address the existence of a dispute regarding the authority of the applicant to utilize the proposed haul road over the property of Ms. Daisy Smith and the effect of this dispute on the ability to develop the proposed access road at Talcum and ability to use the existing haul road until the development of the new road; and

iii. The Board otherwise erred in failing to impose mitigation conditions adequate to protect the interests of landowners and residents along Kentucky 1087 from the adverse effects of additional traffic associated with the facility construction and operation.

C. For each and all of these reasons, the Board's September 5, 2002 Order was otherwise arbitrary, capricious, unlawful and unreasonable.

WHEREFORE, Petitioner Pauline Stacy respectfully requests that the determination of the Kentucky Board on Electric Generation and Transmission Siting granting the application of Kentucky Mountain Power, LLC and Enviropower, LLC for a merchant power plant construction certificate in Knott County, be vacated and set aside as being arbitrary, capricious, unreasonable and unlawful, and for any and all other relief to which petitioner may appear entitled.

Respectfully submitted,

__________________________

Thomas J. FitzGerald

P.O. Box 1070

Frankfort, Kentucky 40602-1070

(502) 8765-2428

(5020 875-2845 (fax)

KBA ID. 22370

Counsel for Petitioner Pauline Stacy

Certification

I hereby certify that, as required in KRS 278.712, a true and correct copy of the foregoing was served by first-class mail, postage prepaid, this 4th day of October, 2002 on all parties of record to the proceeding as these parties who were identified in the attached "CERTIFICATE OF SERVICE":

Hon. Denny Ray Noble, Judge/Executive

Perry County Courthouse

P.O. Box 210

Hazard, Kentucky 41701

Hon. Donnie Newsome, Judge/Executive

Knott County Courthouse

P.O. Box 505

Hindman, Kentucky 41822

Hon. Paul H. Thompson, Judge/Executive

Floyd County Courthouse Annex

149 S. Central Avenue, Suite 9

Prestonsburg, KY 41653

Hon. Betty Cornett, Judge/Executive

Breathitt County Courthouse

1137 Main Street

Jackson, Kentucky 41399

J. R. Wilhite, Commissioner

Economic Development Cabinet

2300 Capital Plaza Tower, 500 Mero Street

Frankfort, Kentucky 40601

Hank List, Deputy Secretary

Natural Resources & Env. Prot. Cabinet

5th Floor, Capital Plaza Tower

500 Mero Street

Frankfort, Kentucky 40601

Frank Rotondi, CEO

EnviroPower, LLC

2810 Lexington Financial Center

250 Main Street

Lexington, Kentucky 40507

Peter Brown, Esq.

Kentucky Mountain Power, LLC

2810 Lexington Financial Center

Lexington, Kentucky 40507

Randy Bird, P.E., P.L.S.

EnviroPower LLC

117 Lincoln Street

Hazard, Kentucky 41701

Robin J. Morecroft

Kentucky Mountain Power, LLC

2810 Lexington Financial Center

Lexington, Kentucky 40507

Karen Jones

900 Smithsboro Road

Sassafras KY 41759

____________________

Thomas J. FitzGerald



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