Appeal Filed in Solid Waste & Coal Power Plant Case

COMMONWEALTH OF KENTUCKY

CLARK CIRCUIT COURT

CIVIL ACTION NO. 03-CI-00680

DIVISION I

 

CHARLES T. WALTERS 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 PIONEER ENERGY, LLC

 

Serve: CT Corporation System

Kentucky Home Life Building

Louisville, Kentucky 40202

 

H.H. Graves, Organizer and Manager

Kentucky Pioneer Energy LLC

Suite 2000, 312 Walnut Street

Cincinnati OH 45202

 

and

 

EAST KENTUCKY POWER COOPERATIVE, INC.

Serve: Roy M. Palk, Agent for Process

4775 Lexington Road

P.O. Box 707

Winchester, Kentucky 40392-0707 RESPONDENTS

 

* * * * *

IN THE MATTER OF:

THE APPLICATION OF KENTUCKY PIONEER ENERGY LLC FOR A CONSTRUCTION CERTIFICATE PURSUANT TO KRS 278.704(1) TO CONSTRUCT A MERCHANT ELECTRIC GENERATING FACILITY;

SITING BOARD CASE 2002-00312

* * * * *

INTRODUCTION

Comes the Petitioner, Charles T. Walters, by and through counsel, and states as follows as 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 Charles T. Walters (Walters) seeks review of a November 10, 2003 determination by the Siting Board granting approval of the application of Kentucky Pioneer Energy LLC (hereafter "KPE") for a merchant power plant construction certificate for construction of a 540 megawatt electric power generation facility in Clark 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 proposed electric generating plant is proposed to be constructed in Clark 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 November 10, 2003. A copy of the Certificate of Service indicating the service date is attached.

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 Kentucky Pioneer Energy, LLC, which is also named as a respondent. East Kentucky Power Cooperative is also named as a party-respondent, since it was an intervenor in the administrative proceeding.

7. Charles T. Walters 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 intervenor status by the Siting Board and having participated in the formal hearing on August 25, 2003 held by the Siting Board.

8. Petitioner Charles Walters is a landowner and resident of Clark County, Kentucky, whose address is P.O. Box 553, 286 Log Lick Road, Winchester, Kentucky 40392. He is a customer and ratepayer of the Clark County Rural Electric Cooperative, which is a member cooperative of the East Kentucky Power Cooperative, the entity that has entered into an agreement with Kentucky Pioneer Energy to purchase the power generated by the proposed Kentucky Pioneer Energy (KPE) facility. Walters lives, works and recreates in Clark County, and has property, economic, and aesthetic interests in the protection of the quality of life in his community. Those interests include an interest in avoiding the adverse effects on the local airshed of emissions from additional coal- and waste gas-fired electrical power generation; and an interest in assuring that the provisions of KRS 100.324 and of KRS 278.710 are properly interpreted and administered so that the compatibility of this new industrial development is subject to local review for compatibility with adopted comprehensive planning and zoning regulations and zoning district maps by the local planning unit before issuance of a construction certificate. Walters is Petitioner in the case of Walters v. Natural Resources and Environmental Protection Cabinet and Kentucky Pioneer Energy, LLC, CA No. 03-CI-561, which is an appeal, pending before the Franklin Circuit Court, of a decision by that Cabinet's Secretary that the proposed garbage-based fuel for the power plant was exempt from state waste permitting and local solid waste plan consistency requirements. Additionally, Walters is an intervenor in a proceeding before the Public Service Commission, An Investigation of East Kentucky Power Cooperative Inc.'s Need For The Gilbert Unit And The Kentucky Pioneer Energy LLC Purchase Power Agreement, Case No. 2003-00030 and The Application of East Kentucky Power Cooperative, Inc. For Approval To Purchase Power Agreement, Case No. 2000-00079 (consolidated), seeking the withdrawal of Commission approval of the power purchase agreement between East Kentucky Power Cooperative and Kentucky Pioneer Energy LLC, due to the lack of need for the base load power from the KPE plant in light of the construction of the Gilbert plant by EKPC.

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. 2002-00312 to approve the application of KPE for a merchant power plant construction certificate to construct a merchant electric generating facility in Clark County, Kentucky was arbitrary and capricious and otherwise unlawful and unreasonable, and should be set aside for these reasons:

A. The Siting Board decision is contrary to law. KRS 278.710(1)(e), KRS 278.706(2)(d), KRS 278.708(3) and KRS 278.704(3), which together require that an applicant obtain approval from any applicable zoning and planning unit prior to an application for a construction certificate being deemed complete under KRS 278.706(2) and prior to a decision being made to approve or disapprove an application under KRS 278.710(1) (and including KRS 278.710(2)(e));

B. The Siting Board decision is arbitrary, capricious and without substantial evidence in the record inasmuch as the undisputed evidence in the record is that the proposed location of the electric generating facility is not currently zoned to support such a use; that there is no pending application for a rezoning or change of zoning classification for that property; and that there is no evidence that such a use is compatible with the applicable zoning and land use plan for that property such as existed at the date of application;

and

C. The Board's November 10, 2003 Order is arbitrary and capricious, being contrary to the analysis and conclusions of law in the April 16, 2003 Order entered in this case;¹ fails to provide a reasoned analysis to support the abrupt departure from the earlier order; and is otherwise arbitrary, capricious, unlawful and unreasonable.

WHEREFORE, Petitioner Charles T. Walters respectfully requests that the determination of the Kentucky Board on Electric Generation and Transmission Siting granting the application of Kentucky Pioneer Energy, LLC for a merchant power plant construction certificate in Clark 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 Charles Walters

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 December, 2003 on all parties of record to the proceeding who were identified in the Siting Board's "CERTIFICATE OF SERVICE":

 

Joseph A. Bickett

Ogden, Newell & Welch, PLLC

1700 Citizens Plaza

500 West Jefferson Street

Louisville, KY 40202

 

Robert G. Blanton

Planning Director, City of Winchester

Planning & Community Development

P.O. Box 40

Winchester, KY 40392-0040

 

Honorable Drew Graham, Judge/Executive

Clark County Courthouse, Room 103

34 South Main Street

Winchester, KY 40391

 

H. H. Graves, Project Director

Global Energy, Inc.

Suite 2650, 312 Walnut Street

Cincinnati, OH 45202

 

Mike Haydon, Governor's Office

700 Capitol Ave., Ste. 100

Frankfort, KY 40601-3492

 

James P. Kirby

122 Belmont Avenue

Winchester, KY 40391

 

Honorable Charles A. Lile

Senior Corporate Counsel

East Kentucky Power Coop, Inc.

4775 Lexington Road

P. O. Box 707

Winchester, KY 40392-0707

 

Hank List, Secretary

Natural Resources and Environmental

Protection Cabinet

5th Floor, Capital Plaza Tower

500 Mero Street

Frankfort, KY 40601

 

Dwight N. Lockwood, P.E., QEP

Kentucky Pioneer Energy, LLC

250 East 5th Street, Suite 1500

Cincinnati, OH 45202

 

John Raymond Maruskin

1101 Ironworks Road

Winchester, KY 40391

 

Mike Musulin, II, President

Kentucky Pioneer Energy, LLC

250 East 5th Street, Suite 1500

Cincinnati, OH 45202

 

Honorable Kendrick R. Riggs

Ogden, Newell & Welch, PLLC

1700 Citizens Plaza

500 West Jefferson Street

Louisville, KY 40202

 

Joe Rivers

Jason Associates Corporation

808 Kalmia Hill Road

Aiken, SC 29801

 

David A. Shafer, P.E.

Commonwealth Associates, Inc.

P.O. Box 1124

Jackson, MI 49204-1124

 

J. R. Wilhite, Commissioner

Economic Development Cabinet

2300 Capital Plaza Tower

500 Mero Street

Frankfort, KY 40601

 

____________________

Thomas J. FitzGerald

1 The April 16, 2003 Order was, according to a subsequent clarification in an Order entered on May 15, 2003, not a final order for purposes of appeal.

 

---