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

APPROVAL OF ESTILL COUNTY POWER PLANT CHALLENGED  Posted: November 13, 2004

COMMONWEALTH
OF KENTUCKY


ESTILL
CIRCUIT COURT


CIVIL
ACTION NO. ____________





WILL
HERRICK 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






Beth O’Donnell, Executive Director


Public Service
Commission



Post Office Box 615



Frankfort, Kentucky 40602





Mark Goss, Chair Ex
Officio


Ky. State Board On
Electric Generation


and Transmission
Siting



Post Office Box 615



Frankfort, Kentucky 40602


and





ESTILL COUNTY ENERGY
PARTNERS, LLC






Serve: Lisa E. Underwood, Registered Agent
314
Holiday Road


Lexington,
KY 40502


and





DLX, Inc.





Serve:
Donald LaViers, Registered Agent
P. O. Box 507,
Highway 15


Isom,
Kentucky 41824





and


HARRY LAVIERS, JR. as
Trustee


for Maxine LaViers
Trust RESPONDENTS





Serve: Harry
LaViers, Jr,


1632 Wild Turkey
Court


Lexington, KY 40511


IN THE MATTER OF:





THE APPLICATION OF
ESTILL COUNTY ENERGY PARTNERS, LLC FOR A CERTIFICATE TO CONSTRUCT A
COAL COMBUSTION/ELECTRIC GENERATING FACILITY; SITING BOARD CASE
2002-00172





* *
* * *





INTRODUCTION






Comes the Petitioner, Will Herrick, by and through counsel, and
states for his Complaint and Petition for Review:



1. This complaint and petition for review is filed pursuant to the
provisions of KRS 278.712, which provides for judicial review of
final determinations of the Kentucky State Board on Electric
Generation and Transmission Siting (Siting Board) rendered under KRS
278.710.



2. Petitioner Will Herrick (Herrick) seeks review of an October 12,
2004 determination by the Siting Board granting approval of the
application of Estill County Energy Partners, LLC (hereafter "ECEP")
for a merchant power plant construction certificate for construction
of a 110 megawatt electric power generation facility in Estill
County, Kentucky. A copy of the final determination appealed from is
attached to this Complaint / Petition for Review.



3. KRS 278.712(5) provides in relevant part 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).






4. This court has jurisdiction to hear this petition for review
pursuant to KRS 278.712(5) and venue is appropriate in this court
inasmuch as the ECEP electric generating plant is proposed to be
constructed in Estill County, Kentucky.



5. This petition for review is timely, having been filed within
thirty (30) days of the date of service of that order and
determination. The Order was both entered and served on October 12,
2004.



6. KRS 278.712 provides that notice be given to all parties of
record to the proceeding. Relief is sought against the Respondent
Siting Board, which is named as a party-respondent, and such relief
directly affects the interests of the construction certificate holder
Estill County Energy Partners, LLC, which is also named as a
respondent. DLX, Inc. and Harry LaViers, as Trustee for the Maxine
LaViers Trust, are also named as a parties-respondent, since they
were both intervenors in the administrative proceeding.



7. Will Herrick has standing to maintain this statutory appeal since
he was a party to the proceeding within the meaning of KRS
278.712(5), having been granted full intervenor status by the Siting
Board and having participated in the formal hearing on August 24,
2004 held by the Siting Board.



8. Petitioner Will Herrick is a resident of Campton, Kentucky whose
address is 4859 Flat Mary Road, Campton, Kentucky 41301-9509.
Herrick lives and works at that same address. Herrick has property,
economic, and aesthetic interests in the protection of the quality of
life in his community. Those interests include an interest in
protecting his domestic water supply, which is a pond located on his
property. To the extent that air emissions of criteria or toxic air
pollutants from the proposed Estill County Energy Partners plant will
contribute additional particulate, NOx, VOC, or hazardous air
pollutants into the airshed in which Herrick lives, his property,
health and economic interests may be adversely affected.
Additionally, Herrick has visited and intends within the next year to
revisit the Great Smoky Mountains National Park. To the extent that
the emissions from the proposed plant will affect visibility or air
quality in the park Herrick’s interests in enjoyment of that
natural resource will be adversely affected.



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



10. The Siting Board determination in Case No. 2002-00172 to approve
the application of ECEP for a merchant power plant construction
certificate to construct a merchant electric generating facility in
Estill County, Kentucky was arbitrary and capricious and otherwise
unlawful and unreasonable, and should be set aside for these reasons:


A.
The Siting Board erred in failing to dismiss or reject the
application for want of standing. ECEP lacked any property interest
in the property on which it proposes to construct the power plant.
Lacking any indicia by the applicant of a current legal interest
sufficient to support construction of the plant and sufficient to
enable the applicant to make necessary commitments concerning
conditions on site development, the Siting Board erred in
entertaining and ruling on the merits of the construction certificate
application, and erred as well in purporting to grant conditional
approval to construct the plant and allowing future submittal of
evidence of a possessory interest in the property.


B.
The Siting Board erred in approving the application notwithstanding
the failure of the applicant to submit “[a]n analysis of the
proposed facility’s economic impact on the affected region and
the state[.]” KRC 278.706(2)(j). The limited economic impact
estimate provided by the applicant was, by its own terms, an
incomplete and insufficient analysis, and did not provide a rational
and sufficient basis upon which the Board could properly make a
finding concerning the “economic impact of the facility upon
the affected region and the state” as required by KRS
278.710(1).



C. The Board's Order is otherwise arbitrary, capricious, unlawful
and unreasonable.



WHEREFORE, Petitioner Will Herrick respectfully requests that the
determination of the Kentucky Board on Electric Generation and
Transmission Siting granting the application of Estill County Energy
Partners, LLC for a merchant power plant construction certificate in
Estill 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 Will Herrick





Certification





I hereby certify
that, as required in KRS 278.712, in addition to service as provided
in the Civil Rules, a true and correct copy of the foregoing was
served by first-class mail, postage prepaid, this 12th day of
November 2004 on all parties of record to the proceeding who were
identified in the Siting Board's "CERTIFICATE OF SERVICE":





Darrell D. Brock, Jr.


Commissioner/Assistant
to Governor


Office of Local
Government


1024 Capital Center
Drive, Suite 340


Frankfort, KY 40601





Wayne F. Collier, Esq.


Kinkead & Stilz,
PLLC


National City Plaza


301 East Main Street,
Suite 800


Lexington, KY
40507-1520





Dell Jaggers


Estill County Energy
Partners, LLC


6000 Sulphur Well Road


Lexington, KY 40509





Gerard B. Mack, Project
Manager


Estill County Energy
Partners, LLC


121 Hermitage Road


Charlotte, NC 28207





John M. St. Clair, Jr.


Citizens Guaranty Bank


Post Office Box 630


Irvine, KY 40336





Judge Wallace Taylor,
County Judge/Executive


Estill County
Courthouse


130 Main Street, Room
101


Irvine, KY 40336





Honorable Lisa E.
Underwood


314 Holiday Road


Lexington, KY 40502





Honorable LaJuana S.
Wilcher, Secretary


Environmental and
Public Protection


KY Division of Energy


Fifth Floor, Capital
Plaza Tower


Frankfort, KY 40601





J. R. Wilhite,
Commissioner


Economic Development
Cabinet


2300 Capital Plaza
Tower, 23rd Floor


500 Mero Street


Frankfort, KY 40601





Danny P. Woods


Brighton A & E


201 Brighton Park Boulevard


Frankfort, KY 40601





Hon. Stephen Watts
II
One James Center


901 East Cary Street


Richmond, VA 23219





Hon. Joseph Tirone


7 St. Paul Street


Suite 1000


Baltimore, MD 21202





____________________


Thomas J.
FitzGerald






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