APPROVAL OF ESTILL COUNTY POWER PLANT CHALLENGED


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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




 
By Kentucky Resources Council on 02/13/2004 5:32 PM
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