278.706 Application for certificate to construct merchant electric generating
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/ky/278-706A research copy — for the controlling text, always check the official state or federal source. Not legal advice.
facility -- Requirements -- Fees -- Replacement or repair does not constitute
construction -- Administrative regulations.
(1)Any person seeking to obtain a construction certificate from the board to construct a
merchant electric generating facility shall file an application at the office of the
Public Service Commission.
(2)A completed application shall include the following:
(a)The name, address, and telephone number of the person proposing to
construct and own the merchant electric generating facility;
(b)A full description of the proposed site, including a map showing the distance
of the proposed site from residential neighborhoods, the nearest residential
structures, schools, and public and private parks that are located within a two
(2)mile radius of the proposed facility;
(c)Evidence of public notice that shall include the location of the proposed site
and a general description of the project, state that the proposed construction is
subject to approval by the board, and provide the telephone number and
address of the Public Service Commission. Public notice shall be given within
thirty
(30)days immediately preceding the application filing to:
1. Landowners whose property borders the proposed site; and
2. The general public in a newspaper of general circulation in the county or
municipality in which the facility is proposed to be located;
(d)A statement certifying that the proposed plant will be in compliance with all
local ordinances and regulations concerning noise control and with any local
planning and zoning ordinances. The statement shall also disclose setback
requirements established by the planning and zoning commission as provided
under KRS 278.704(3);
(e)If the facility is not proposed to be located on a site of a former coal
processing plant and the facility will use on-site waste coal as a fuel source or
in an area where a planning and zoning commission has established a setback
requirement pursuant to KRS 278.704(3), a statement that the exhaust stack of
the proposed facility and any wind turbine is at least one thousand (1,000) feet
from the property boundary of any adjoining property owner and all proposed
structures or facilities used for generation of electricity are two thousand
(2,000) feet from any residential neighborhood, school, hospital, or nursing
home facility, unless facilities capable of generating ten megawatts
or more currently exist on the site. If the facility is proposed to be located on a
site of a former coal processing plant and the facility will use on-site waste
coal as a fuel source, a statement that the proposed site is compatible with the
setback requirements provided under KRS 278.704(5). If the facility is
proposed to be located in a jurisdiction that has established setback
requirements pursuant to KRS 278.704(3), a statement that the proposed site
is in compliance with those established setback requirements;
(f)A complete report of the applicant's public involvement program activities
undertaken prior to the filing of the application, including:
1. The scheduling and conducting of a public meeting in the county or
counties in which the proposed facility will be constructed at least
ninety
(90)days prior to the filing of an application, for the purpose of
informing the public of the project being considered and receiving
comment on it;
2. Evidence that notice of the time, subject, and location of the meeting
was published in the newspaper of general circulation in the county, and
that individual notice was mailed to all owners of property adjoining the
proposed project at least two
(2)weeks prior to the meeting; and
3. Any use of media coverage, direct mailing, fliers, newsletters, additional
public meetings, establishment of a community advisory group, and any
other efforts to obtain local involvement in the siting process;
(g)A summary of the efforts made by the applicant to locate the proposed facility
on a site where existing electric generating facilities are located;
(h)Proof of service of a copy of the application upon the chief executive officer
of each county and municipal corporation in which the proposed facility is to
be located, and upon the chief officer of each public agency charged with the
duty of planning land use in the jurisdiction in which the facility is proposed
to be located;
(i)An analysis of the proposed facility's projected effect on the electricity
transmission system in Kentucky;
(j)An analysis of the proposed facility's economic impact on the affected region
and the state;
(k)A detailed listing of all violations by it, or any person with an ownership
interest, of federal or state environmental laws, rules, or administrative
regulations, whether judicial or administrative, where violations have resulted
in criminal convictions or civil or administrative fines exceeding five
thousand dollars ($5,000). The status of any pending action, whether judicial
or administrative, shall also be submitted;
(l)A site assessment report as specified in KRS 278.708. The applicant may
submit and the board may accept documentation of compliance with the
National Environmental Policy Act
(NEPA)rather than a site assessment
report; and
(m)A decommissioning plan that shall describe how the merchant electric
generating facility will be decommissioned and dismantled following the end
of its useful life. The decommissioning plan shall, at a minimum, include
plans to:
1. Unless otherwise requested by the landowner, remove all above-ground
facilities;
2. Unless otherwise requested by the landowner, remove any underground
components and foundations of above-ground facilities. Facilities
removed under this subparagraph shall be removed to a depth of three
(3)feet below the surface grade of the land in or on which the
component was installed, unless the landowner and the applicant
otherwise agree to a different depth; 3. Return the land to a substantially similar state as it was prior to the
commencement of construction; 4. Unless otherwise requested by the landowner, leave any interconnection
or other facilities in place for future use at the completion of the
decommissioning process; 5. Secure a bond or other similar security for the project to assure financial
performance of the decommissioning obligation, provided that:
a. The amount of the proposed bond or similar security shall be
determined by an independent, licensed engineer who is
experienced in the decommissioning of solar electric generating
facilities and has no financial interest in either the merchant
electric generating facility or any parcel of land upon which the
merchant electric generating facility is located. The proposed
amount of the bond or similar security shall be either:
i. The net present value of the total estimated cost of
completing the decommissioning plan, less the current net
salvage value of the merchant electric generating facility's
components; or
ii. The bond amount required by a county or municipal
government that has established a decommissioning bond
requirement or similar security obligation in the county or
municipality where the merchant electric generating facility
will be located. If the facility will be located in more than
one
(1)county or municipality that has established a
decommissioning bond or similar security obligation, then
the higher amount shall be required for the facility;
b. The bond or other similar security names:
i. For property that is leased by the applicant, each landowner
from whom the applicant leases land and the Energy and
Environment Cabinet as the primary co-beneficiaries; or
ii. For property that is owned by the applicant, the Energy and
Environment Cabinet as the primary beneficiary;
c. If the merchant electric generating facility is to be located in a
county or municipality that has not established a decommissioning
bond or other similar security obligation, the bond or other similar
security shall name the county or municipality as a secondary
beneficiary with the county's or municipality's consent;
d. The bond or other similar security shall be provided by an
insurance company or surety that shall at all times maintain at least
an "Excellent" rating as measured by the AM Best rating agency
or an investment grade credit rating by any national credit rating
agency and, if available, shall be noncancelable by the provider or
the customer until completion of the decommissioning plan or
until a replacement bond is secured; and
e. The bond or other similar security shall provide that at least thirty
(30)days prior to its cancellation or lapse, the surety shall notify
the applicant, its successor or assign, each landowner, the Energy
and Environment Cabinet, and the county or city in which the
facility is located of the impending cancellation or lapse. The
notice shall specify the reason for the cancellation or lapse and
provide any of the parties, either jointly or separately, the
opportunity to cure the cancellation or lapse prior to it becoming
effective. The applicant, its successor, or its assign, shall be
responsible for all costs incurred by all parties to cure the
cancellation or lapse of the bond. Each landowner, or the Energy
and Environment Cabinet with the prior approval of each
landowner, may make a demand on the bond and initiate and
complete the decommissioning plan.
6. Communicate with each affected landowner at the end of the merchant
electric generating facility's useful life so that any requests of the
landowner that are in addition to the minimum requirements set forth in
this paragraph and in addition to any other requirements specified in the
lease with the landowner may, in the sole discretion of the applicant or
its successor or assign, be accommodated; and
7. Incorporate the requirements of subparagraphs 1. to 6. of this paragraph
into the applicant's leases with landowners.
(3)Application fees for a construction certificate shall be set by the board and
deposited into a trust and agency account to the credit of the commission.
(4)Replacement of a merchant electric generating facility with a like facility, or the
repair, modification, retrofitting, enhancement, or reconfiguration of a merchant
electric generating facility shall not, for the purposes of this section and KRS
224.10-280, 278.704, 278.708, 278.710, and 278.712, constitute construction of a
merchant electric generating facility.
(5)The board shall promulgate administrative regulations prescribing fees to pay
expenses associated with its review of applications filed with it pursuant to KRS
278.700 to 278.716. All application fees collected by the board shall be deposited in
a trust and agency account to the credit of the Public Service Commission. If a
majority of the members of the board find that an applicant's initial fees are
insufficient to pay the board's expenses associated with the application, including
the board's expenses associated with legal review thereof, the board shall assess a
supplemental application fee to cover the additional expenses. An applicant's failure
to pay a fee assessed pursuant to this subsection shall be grounds for denial of the
application.