Approval of Estill County Power Plant Challenged

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CIVIL ACTION NO. ____________

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 One Electric Generation and Transmission Siting
Post Office Box 615, Frankfort, Kentucky 40602 



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

Lexington, KY 40502


DLX, Inc.

Donald LaViers, Registered Agent
P. O. Box 507,
Highway 15, Isom, Kentucky 41824


Trustee for Maxine LaViers

Serve: Harry LaViers, Jr,
1632 Wild Turkey Court, Lexington, KY 40511





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:
    1. 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.
    2. 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).
    3. 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) 875-2428

(5020 875-2845


KBA ID. 22370




Counsel for
Petitioner Will Herrick




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