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Kentucky Certificate to Construct a Merchant Transmission Line (8-KY-a)

Information current as of 2018
In Kentucky, a developer may need a Certificate to Construct a Merchant Transmission Line (Certificate to Construct) from the Kentucky State Board on Electric Generation and Transmission Siting (Siting Board) to construct a non-regulated electric transmission line also known as a merchant transmission line. KY. Rev. Stat. Ann. §§ 278.714. A non-regulated electric transmission line is an electric transmission line of 69 kV or more and related appurtenances for which no Certificate of Public Convenience and Necessity is required, which is not operated as an activity regulated by the Kentucky Public Service Commission. KY. Rev. Stat. Ann. §§ 278.700, 704.


The Siting Board was created in 2002 for the purpose of reviewing applications, and as appropriate, to grant Certificates to Construct for the construction of electric generating facilities and transmission lines that are not regulated by the Kentucky Public Service Commission. Kentucky State Board on Electric Generation and Transmission Siting – Electric Generation & Transmission Siting Process Guide. The Siting Board regulates the construction of electric generating facilities and transmission lines that are not regulated by the Kentucky Public Service Commission pursuant to Kentucky – KY. Rev. Stat. Ann. §§ 278.010 – 278.992, Public Service Commission and Kentucky – 807 KY. Admin. Regs. 5:001 – 5:120, Utilities.


Certificate to Construct a Merchant Transmission Line Process

8-KY-a.1 – Notice of Intent to File Application

A merchant transmission developer must submit a Notice of Intent to File Application (NOI) to the Siting Board at least 30 days, but no more than six (6) months prior to submitting an Application. 807 KY. Admin. Regs. 5:110(2). A NOI must include, at minimum, the following:

  • The name, address, telephone number, and electronic mail address of the person who intends to file the Application;
  • A brief description of the proposed construction that will be the subject of the Application;
  • A description of the location of the proposed construction, including:
    • the name of the city and county in which the construction will be proposed;
    • the street address and latitude and longitude of the site of the construction to be proposed; and
    • if the proposed construction will be within the boundaries of a city.
  • The address of the planning and zoning commission, if any, with jurisdiction over the site of the construction to be proposed;
  • If applicable, a description of the setback requirements of the planning and zoning commission with jurisdiction over the site of the construction to be proposed; and
  • If the planning commission's setback requirements are less stringent than those prescribed by statute, or if the planning commission with jurisdiction, if any, has not established setbacks, a statement as to if a deviation from the statutory setback requirements will be requested in the Application. 807 KY. Admin. Regs. 5:110(2).

If the developer fails to file an Application to a Nonregulated Electric Transmission Line within six (6) months of the filing of the NOI, the NOI automatically expires without further notice to the applicant (developer). 807 KY. Admin. Regs. 5:110(2).

8-KY-a.2 – Publish Public Notice of the Application

The developer must publish public notice of the Application in a newspaper of general circulation in the general area concerned. Public notice must include the location of the proposed electric transmission line and must state that the proposed line is subject to approval by the Siting Board and must provide the telephone number and address of the Public Service Commission where the Siting Board office is located. KY. Rev. Stat. Ann §278.714(2).

8-KY-a.3 – Application to Construct a Nonregulated Electric Transmission Line

A developer must submit a complete Application to Construct a Nonregulated Electric Transmission Line (Application) to the Siting Board within 30 days from filing a complete NOI. Kentucky State Board on Electric Generation and Transmission Siting – Electric Generation & Transmission Siting Process Guide. The developer must file an original and ten (10) copies of the Application, and one (1) in electronic format. 807 KY. Admin. Regs. 5:110(3). The developer must file the Application in accordance with all of the requirements outlined in 807 KY. Admin. Regs. 5:110. The developer must also submit a copy of the Application to 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. KY. Rev. Stat. Ann §278.714(2).

An Application must include, at minimum, the following:
  • The name, address, and telephone number of the person proposing construction of the nonregulated electric transmission line;
  • A full description of the proposed route of the electric transmission line or the carbon dioxide transmission pipeline and its appurtenances. The description shall include a map or maps showing:
    • the location of the proposed line or pipeline and all proposed structures that will support it;
    • the proposed right-of-way limits;
    • existing property lines and the names of persons who own the property over which the line or pipeline will cross; and
    • the distance of the proposed electric transmission line from residential neighborhoods, schools, and public and private parks within one (1) mile of the proposed facilities.
  • A full description of the proposed line and appurtenances, including the following:
    • initial and design voltages and capacities;
    • length of line;
    • terminal points; and
    • substation connections;
  • A statement that the proposed electric transmission line and appurtenances will be constructed and maintained in accordance with accepted engineering practices and the National Electric Safety Code;
  • Evidence that public notice has been given by publication in a newspaper of general circulation in the general area concerned; and
  • Proof of service of a copy of the Application upon the chief executive officer of each county and municipal corporation in which the proposed electric transmission line is to be located, and upon the chief officer of each public agency charged with the duty of planning land use in the general area in which the line or pipeline is proposed to be located.

KY. Rev. Stat. Ann §278.714(2).

8-KY-a.4 to 8-KY-a.5 – Review Application Materials for Completeness

The Siting Board must review the Application materials for administrative and technical completeness.

8-KY-a.6 to 8-KY-a.10 – Request Local Public Hearing or Meeting (Optional)

Any interested person may request a local public hearing or local public information meeting on the Application within 30 days from the filing of a complete Application. KY. Rev. Stat. Ann §278.712; 807 KY. Admin. Regs. 5:110(8). The Siting Board may hold a public hearing or meeting on the Application if at least three (3) interested persons who reside in the county or municipal corporation in which a non-regulated/merchant electric transmission line is proposed to be located. KY. Rev. Stat. Ann §278.712(1); 807 KY. Admin. Regs. 5:110(3). The Siting Board must convene a local public hearing in response to a request from the planning and zoning commission, mayor of a city or county fiscal court of a jurisdiction where the facility is proposed to be located. KY. Rev. Stat. Ann §278.712.

The Siting Board must give notice of the public hearing or meeting 14 days in advance of the meeting. The Siting Board must give notice to:

  • All parties to the proceeding;
  • The judge or executive of the county in which the construction of the facility or transmission line is to be located;
  • The mayor of the city in which the facility or transmission line is to be located, if applicable; and
  • The planning commission with jurisdiction over the area in which the facility is to be located, if applicable.

807 KY. Admin. Regs. 5:110(8); Kentucky State Board on Electric Generation and Transmission Siting – Electric Generation & Transmission Siting Process Guide.

The developer must also give notice to the general public about the public hearing or meeting. 807 KY. Admin. Regs. 5:110(9).

The notice must include the date, time, and location of the public hearing or meeting. Kentucky State Board on Electric Generation and Transmission Siting – Electric Generation & Transmission Siting Process Guide.

The developer must give proof of notice of the public hearing or meeting to the Siting Board at least three (3) days before the hearing date. The proof of notice must show that the applicant (developer) gave notice to the general public about the public hearing or meeting in a newspaper of general circulation in the county or municipality in which the merchant electric transmission line is proposed. 807 KY. Admin. Regs. 5:110(9).

8-KY-a.11 to 8-KY-a.14 – Hold Local Public Hearing or Meeting

The Siting Board must hold the public hearing meeting within 60 days of the filing of the Application. The Siting Board must hold the meeting within the county the merchant electric generating facility, or a non-regulated electric transmission line is proposed. If the facility spans more than one county, the local public hearing will be held in the most populous county. KY. Rev. Stat. Ann §278.712; Kentucky State Board on Electric Generation and Transmission Siting – Electric Generation & Transmission Siting Process Guide.

The public may provide oral or written comments to the Siting Board at the public hearing or meeting or may submit comments to Siting Board. 807 KY. Admin. Regs. 5:110(8); Kentucky State Board on Electric Generation and Transmission Siting – Electric Generation & Transmission Siting Process Guide.

Within seven (7) calendar days after the local public hearing or local public information meeting, administrative staff for the Siting Board must file in the official record of the case, with a copy to each party of record, a summary of public comments made at the local hearing or local public information meeting that:

  • Identifies each person who made oral comments; and
  • Summarizes the comments received.

807 KY. Admin. Regs. 5:110(8).

8-KY-a.15 to 8-KY-a.19 – Motion to Intervene (Optional)

A person who wishes to become a party to a proceeding before the Siting Board may, by written motion filed no later than 30 days after the Application has been submitted, request leave to intervene. The Siting Board will grant a motion to intervene if the intervener has shown:

  • That she/he has a special interest in the proceeding; or
  • That her/his participation in the proceeding will assist the Siting Board in reaching a decision and would not unduly interrupt the proceeding.

807 KY. Admin. Regs. 5:110(4).

Intervenors can be, but are not limited to, residents of the city or county in which the proposed merchant transmission line is to be located. Intervenors have the right to participate fully in the Siting Board proceedings. This includes the right to file requests for information from the applicant (developer) or other parties and to cross-examine witnesses during formal proceedings of the Siting Board. Parties to a case before the Siting Board also have the right to appeal the Siting Board decision to the Circuit Court in the county in which the facility is proposed to be located. Kentucky State Board on Electric Generation and Transmission Siting – Electric Generation & Transmission Siting Process Guide.

8-KY-a.19 to 8-KY-a.22 – Request Evidentiary Hearing (Optional)

A party to proceeding may, upon written motion filed no later than 30 days after an Application has been filed, request the Siting Board to schedule an evidentiary hearing at the offices of the Kentucky Public Service Commission where the Siting Board sits at, 211 Sower Boulevard, Frankfort, Kentucky. The Siting Board upon its own motion or on written motion of a party must hold an evidentiary hearing. 807 KY. Admin. Regs. 5:110(6).

The developer must provide notice of the evidentiary hearing in a newspaper of general circulation in the county or municipality in which the merchant electric transmission line is proposed. 807 KY. Admin. Regs. 5:110(9).

The developer must give proof of notice of the evidentiary hearing to the Siting Board at least three (3) days before the hearing date. The proof of notice must show that the applicant (developer) gave notice to the general public about the evidentiary hearing in a newspaper of general circulation in the county or municipality in which the merchant electric transmission line is proposed. 807 KY. Admin. Regs. 5:110(9).

The Siting Board must hold the evidentiary hearing in accordance to 807 KY. Admin. Regs. 5:110.

8-KY-a.23 to 8-KY-a.24 – Review Application for Approval

The Siting Board must review the Application for approval within 120 days of receipt of an administratively complete Application, or 180 days of receipt of an administratively complete Application if a hearing is requested. The Siting Board, by majority vote, grant or deny a Certificate to Construct, either in whole or in part, based on the following criteria:

  • Impact of the facility on scenic surroundings, property values, the pattern and type of development of adjacent property, and surrounding roads;
  • Anticipated noise levels expected as a result of construction and operation of the proposed transmission line;
  • The economic impact of the transmission line upon the affected region and the state;
  • Whether the proposed transmission line will meet all local planning and zoning requirements that existed on the date the application was filed;
  • The efficacy of any proposed measures to mitigate adverse impacts that are identified from the construction or operation of the proposed facility; and
  • Whether the applicant (developer) has a good environmental compliance history. KY. Rev. Stat. Ann §278.710.

8-KY-a.25 – Certificate to Construct a Merchant Transmission Line

The developer must comply with the conditions and requirements to the Certificate to Construct.

8-KY-a.26 – Appeal Decision (Optional)

Any party to a proceeding or any final determination may within 30 days after service of the Siting Board’s final ruling, bring an action against the Siting Board in the Circuit Court of the county in which the facility or merchant transmission line 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 Siting Board’s ruling in the Circuit Court of the county in which the facility is proposed to be constructed must give notice to all parties of record in the Siting Board’s proceeding. KY. Rev. Stat. Ann §278.712.


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