KRS § 164.2807 — KY Code / Title XIII / Chapter 164 / Section 164.2807
164.2807 Legislative findings and declarations -- Definitions -- Energy Planning and Inventory Commission -- Membership -- Executive committee -- Powers and duties -- Required review of proposed retirement of coal, oil, or natural gas-fired electric generating units -- Reports of commission -- Sunset
Status: in_force

164.2807 Legislative findings and declarations -- Definitions -- Energy Planning

and Inventory Commission -- Membership -- Executive committee -- Powers

and duties -- Required review of proposed retirement of coal, oil, or natural

gas-fired electric generating units -- Reports of commission -- Sunset.

(1) The General Assembly finds and declares that:

(a) The long-term economic health and well-being of the citizens of the

Commonwealth and the United States depends upon the availability of

reliable sources of energy;

(b) The Commonwealth has abundant reserves of coal, natural gas, and other

natural resources;

(c) The energy needs of the Commonwealth are best met by continuing to engage

in an all-of-the-above approach to electric generation resources, including but

not limited to coal, oil, natural gas, wind, solar, hydropower, nuclear, and any

future or emerging technologies like hydrogen power;

(d) The current economy and future economic development of the

Commonwealth requires reliable, resilient, dependable, and abundant supplies

of electrical power;

(e) The demand for reliable, resilient, dispatchable electrical power is anticipated

to significantly increase in the coming decades as the Commonwealth

becomes home to additional manufacturing and other economic development

projects which increase demand for electrical power;

(f) It is in the interest of the Commonwealth that it be able to generate sufficient

electricity within its borders to serve its own industrial, residential, and

commercial demand and to power its own economy;

(g) The electrification of the United States' economy combined with

unprecedented federal regulatory pressures have created an electric generation

resource crisis in the Commonwealth;

(h) Existing state and federal policies with respect to energy do not adequately

address the concerns of the General Assembly or citizens of the

Commonwealth such that a comprehensive Kentucky energy policy is

required;

(i) Current policies at the state and federal level do not adequately assess

capacity, availability, reliability, or resilience attributes of existing and new

fossil fuel-fired, nuclear, or other emerging dispatchable electric generating

resources;

(j) It is the policy of the Commonwealth to maintain adequate capacity of

available, reliable, dispatchable, and resilient electric generation to provide for

the existing and reasonably projected future energy consumption needs of all

wholesale, retail, and other consumers of electricity in the Commonwealth;

(k) Further retirement of fossil fuel-fired electric generating resources is not

necessary for the protection of the environment or the health, safety, and

welfare of the citizens of the Commonwealth;

(l) The health, happiness, safety, economic opportunity, and general welfare of

the citizens of the Commonwealth will be promoted and protected by the

operation of fossil fuel-fired electric generating resources and, conversely,

those interests would be harmed by the premature retirement of those

generating resources;

(m) The Commonwealth can support a multitude of potential electric generating

resources and energy fuel supply sources so as to be the national leader in the

production of energy in all forms;

(n) Local economic development is essential to the health, happiness, safety, and

general welfare of the citizens of the Commonwealth;

(o) Local economic development requires an adequate supply of electricity to

support new and expanding industries and is enhanced by robust employment

in coal mining and coal transportation and at electric generating facilities, the

local job multiplier effect of employment in the coal, natural gas, and electric

generating industries, and state and local taxes and other forms of economic

value creation for the Commonwealth; and

(p) The numerous energy policy challenges facing the Commonwealth require a

comprehensive energy policy informed by the input, judgment, experience,

and expertise of diverse stakeholders representing a variety of interests and

energy resources, including but not limited to coal, oil, natural gas, wind,

solar, hydropower, nuclear, and any future or emerging resources to achieve

the best results for the citizens of the Commonwealth.

(2) For the purposes of this section:

(a) "Commission" means the Energy Planning and Inventory Commission

established in this section;

(b) "Dispatchable" means a source of electric power generation that is available

on demand, that is not intermittent, and that can be adjusted to increase or

decrease its power output upon request of a power grid operator or otherwise

upon demand or request, or that can have its power output adjusted in

response to market or system needs;

(c) "Generation and transmission cooperative" has the same meaning as in KRS

278.010;

(d) "Intermittent" means:

1. A source of electric power generation from a solar photovoltaic, solar

thermal heating, concentrating solar thermal collector, or other solar

energy collection or generation system;

2. A source of electric power that generates energy by harnessing wind

power or energy, whether through a turbine or other device;

3. Geothermal energy, biomass energy, anaerobic digestion, or combined

heat and power from solar, wind, geothermal, or anaerobic digestion

sources;

4. Any short duration energy storage, which includes any method of

storing generated electricity for later dispatch to the grid, whether alone

or in conjunction with any other intermittent sources described in this

paragraph, that is equivalent to less than forty-eight (48) hours of the

average peak generation of the unit it is used to offset; or

5. Conventional hydropower and pumped storage hydropower, unless they

are capable of providing energy on demand, in which case they shall be

deemed to be dispatchable;

(e) "Public Service Commission" means the Kentucky Public Service

Commission established under KRS Chapter 278, or any successor entity

having the power to regulate rates and services of public utilities pursuant to

the powers enumerated in KRS Chapter 278; and

(f) "Utility" has the same meaning as in KRS 278.010.

(3) The Energy Planning and Inventory Commission is hereby established and

administratively attached to the University of Kentucky Center for Applied Energy

Research, but it shall otherwise be independent from the University of Kentucky

and any Kentucky executive branch agency. The affairs of the commission shall be

governed exclusively by the provisions of this section. The exercise of the

commission's powers conferred by this section and the carrying out of its purposes

and duties are essential governmental functions and are conducted for public

purposes.

(4) (a) The commission shall be composed of an eighteen (18) member board and a

five (5) member executive committee. Except for the state government

officials and the ex officio nonvoting commission board members appointed

by the President of the Senate and the Speaker of the House of

Representatives, each member of the commission board shall be appointed by

the Governor and confirmed by the Senate as set forth in this subsection. The

commission board shall be composed of the following members:

1. One (1) representative of a Kentucky investor-owned utility;

2. One (1) representative of a Kentucky generation and transmission

cooperative, nominated by the chief operating officer of the Kentucky

Association of Electric Cooperatives;

3. One (1) representative of Kentucky coal producers, nominated by the

president of the Kentucky Coal Association;

4. One (1) representative of Kentucky oil and gas producers, nominated by

the executive director of the Kentucky Oil and Gas Association;

5. One (1) representative of an industry or business engaged in the

transportation of coal;

6. One (1) representative of a business engaged in the transportation or

distribution of natural gas, nominated by the president of the Kentucky

Gas Association;

7. One (1) representative with professional experience in the purchasing or

sale of fossil fuels, nominated by the president of the Kentucky Coal

Association;

8. One (1) member representing the nuclear electric generation industry,

nominated by the executive director of the United States Nuclear

Industry Council;

9. One (1) member representing the interests of businesses or entities

engaged in activities related to the mining, milling, conversion,

enrichment, or fabrication of nuclear fuel or involved in the remediation

of past enrichment of nuclear fuels in the Commonwealth;

10. One (1) member representing commercial and industrial consumers of

electrical power, nominated by Kentucky Industrial Utility Customers;

11. One (1) member representing Kentucky economic interests, nominated

by the chief executive officer of the Kentucky Chamber of Commerce;

12. One (1) member representing producers of renewable electricity;

13. One (1) member with experience in investment banking or utility

finance, nominated by the president of the Kentucky Banker’s

Association;

14. One (1) member representing residential electricity consumers;

15. One (1) member of the House of Representatives, who shall be an ex

officio nonvoting member, nominated by the Speaker of the House of

Representatives;

16. One (1) member of the Senate, who shall be an ex officio nonvoting

member, nominated by the President of the Senate;

17. The secretary of the Energy and Environment Cabinet, or designee; and

18. The secretary of the Cabinet for Economic Development, or designee.

(b) The executive committee of the board shall include the following five (5)

members:

1. The director of the University of Kentucky Center of Applied Energy

Research;

2. One (1) member appointed by the Governor who has the same level of

education, training, and professional experience as would be required to

serve in the role of chief executive officer or board member of a

company engaged in the production of coal;

3. One (1) member appointed by the Governor who has the same level of

education, training, and professional experience as would be required to

serve in the role of chief executive officer or board member of an

investor-owned, cooperative, or municipal electric utility; and

4. Two (2) members elected by the commission board from the

commission board membership. Any vacancy in an executive committee

position under this subparagraph shall be filled in the same manner as

the original election.

(c) Any appointment made by the Governor to the commission board or the

executive committee shall be subject to confirmation by the Senate. If a

pending appointment to the board or executive committee requiring

confirmation is not confirmed by the Senate upon the conclusion of the

legislative session during or before which the appointment was made, then the

member’s position on the board or executive committee shall become vacant,

either upon sine die adjournment of the legislative session or the date that the

Senate votes to decline to confirm appointment, and the Governor shall

appoint a different replacement.

(d) After the expiration of their initial terms, members who are not members of

the legislative or executive branch shall serve for terms of four (4) years and

until a successor is appointed and confirmed by the Senate. Legislative

members shall serve during the terms of their elected positions in the General

Assembly, and executive branch members shall serve during the appointed

terms of their state government positions. In the event of a vacancy prior to

the expiration of a term for member appointed by the Governor, the Governor

shall appoint a replacement in the same manner as the original appointment,

and the appointment shall be subject to the same Senate confirmation process.

Members appointed by the Governor shall not be full-time employees of the

Commonwealth as defined in KRS 18A.005, and shall not be compensated for

their service on the board, but they shall be subject to the requirements of the

executive branch code of ethics established under KRS Chapter 11A.

(e) A majority of the commission board may select one (1) member of the

commission board to serve as chair of the commission board and one (1)

member of the commission board to serve as vice chair of the commission

board.

(f) The executive committee may adopt rules of procedure or bylaws governing

the conduct of the commission’s business.

(g) Other than being a customer of retail electric service, no member of the

executive committee shall have any current employment, contractual, or other

direct financial relationship with any utility at the time of their appointment or

during their service on the executive committee.

(h) No person shall serve as a member of the commission board or executive

committee if the service would cause a conflict with, or result in the

disclosure of confidential information relating to, any research projects

performed by or in partnership with the University of Kentucky Center for

Applied Energy Research.

(i) If the review of a notice given under subsection (7) of this section would

result in the disclosure of confidential information to an executive committee

member that is prohibited under subsection (7)(c)3. of this section, the

executive committee member shall recuse himself or herself, and the

remaining executive committee members shall name a replacement from the

membership of the commission board solely for the purpose of reviewing the

notice that caused the recusal.

(j) A majority of the executive committee shall constitute a quorum, and the

affirmative vote of the majority of the members present during a meeting is

necessary for any action taken by vote of the executive committee.

(k) The Governor shall not have reorganization power over the commission, the

structure of the commission, its board, the executive committee, or the hiring,

compensation, or termination of its executive director. Only the General

Assembly may reorganize or restructure the commission or the commission

board by legislative act.

(5) The commission may employ an executive director who shall be selected and hired

by the executive committee, subject to confirmation by the Senate. If a pending

selection for an executive director is not confirmed by the Senate upon the

conclusion of the legislative session during or before which the selection was made,

then the executive director's position shall become vacant, either upon sine die

adjournment of the legislative session or the date that the Senate votes to decline to

confirm appointment, and the executive committee shall select a different

replacement. Until an executive director is selected and hired, or in the event of a

vacancy in the role of executive director, the director of the University of Kentucky

Center for Applied Energy Research shall serve in the role of executive director of

the commission.

(6) The commission shall be authorized to:

(a) Take all necessary measures to effectuate the public purposes described in

subsection (1) of this section;

(b) Assist in fulfilling the executive committee’s mandatory duties regarding

review of planned retirement decisions described in subsection (7) of this

section;

(c) Engage in the examination and study of:

1. The adequacy of the Commonwealth's existing and anticipated future

electric generation and transmission resources and the existing and

anticipated future electric demand;

2. The continued operation, retirement, divestiture, or other major action

impacting any electric power generating unit, or any pollution control

equipment associated with any such unit, located in the Commonwealth;

3. Issues concerning the adequacy of the Commonwealth’s energy supply,

including but not limited to the economic impact of energy production

and consumption in the Commonwealth, the Kentucky energy grid’s

response to severe weather events, projected power demand and growth

in demand, land use impacts from power generation, local economic

impacts resulting from the closure of electric generating resources, and

whether alternatives to decommissioning electric generating resources

exist;

4. The effect of any federal policy which may impact the availability of

dispatchable power or the adequacy of energy supplies in the

Commonwealth;

5. The Commonwealth’s ability to participate in energy markets or in the

production, transmission, or distribution of energy;

6. The Commonwealth’s ability to finance or provide financing assistance

to energy producers to encourage additional energy production in the

Commonwealth;

7. New and emerging electric generating technologies that could supply

future electric demand in the Commonwealth; and

8. Whether the Commonwealth’s energy resources are sufficiently

dispatchable to ensure against loss of electrical power supply in the

event of extreme weather or other unexpected or catastrophic events that

may challenge the ability of the Commonwealth’s electrical grid to meet

demand; and

(d) On or before December 1, 2024, and each December 1 thereafter, submit a

report with recommendations, including but not limited to recommendations

for statutory changes or budgetary proposals, to the Legislative Research

Commission, the Governor, and the Public Service Commission concerning

any of the issues examined or studied by the commission pursuant to

paragraph (c) of this subsection.

(7) (a) Notwithstanding any provision of law to the contrary, no utility shall retire

any existing coal, oil, or natural gas-fired electric generating plant, or any unit

within the plant, prior to submitting notice to the commission and receiving

the findings from the executive committee, as described in this subsection.

(b) A utility proposing to retire any existing coal, oil, or natural gas-fired power

plant, or unit within such plant, shall give notice to the commission's

executive committee, in the form and manner as the executive committee may

require, at least one hundred eighty (180) days prior to submitting the

retirement application to the Public Service Commission required by KRS

278.264(1). The utility may include with its notice any information the utility

believes will assist in the executive committee's review of the proposed

activity.

(c) 1. The executive committee or executive director may require a utility

filing notice under this subsection to provide any information, records,

or data that the executive committee or executive director deems

reasonably necessary to make its findings under this subsection, and the

utility shall respond to all such requests within a reasonable timeframe

as established by the executive committee or executive director.

2. A utility responding to an information request may designate

information, records, or data provided in the response as confidential

business information, and the information, records, or data shall be

exempt from disclosure under the requirements of KRS 61.870 to

61.884.

3. A utility responding to an information request may indicate in its

response that the information, records, or data provided should not be

shared with specific members of the commission board or executive

committee to avoid an unfair competitive or market advantage, in which

case the confidential information, records, or data shall not be shared

with or made available to that member or members.

(d) Other than being a customer of retail electric service, any member of the

commission board who has an employment or contractual relationship with

the utility filing the notice required by this subsection shall have no contact

with the executive director or any member of the executive committee

concerning the proposed activities described in the notice.

(e) Within ninety (90) days of its receipt of the notice required by this section, the

commission shall hold a public hearing in the county in which the retirement

is proposed to occur in order to receive public comments on the proposed

activity.

(f) Within one hundred thirty-five (135) days of receiving a utility’s notice of a

proposed retirement, but following the public hearing described in paragraph

(e) of this subsection, the executive committee shall issue a final report

containing written findings and recommendations concerning the proposed

retirement. The executive committee’s written findings and recommendations

shall include:

1. The impact of the proposed activity on the available supply of

dispatchable and reliable power within the Commonwealth, including

the ability of the Commonwealth to meet future demand growth or

respond to extreme weather events;

2. Whether alternatives to the proposed activity exist, and whether those

alternatives should be further evaluated prior to proceeding with the

proposed activity;

3. Whether the replacement of the generating unit or units subject to the

proposed activity with other generating resources will result in any

adverse land use impacts in the Commonwealth;

4. Whether the proposed activity will result in loss of revenue to the

Commonwealth or any local government unit;

5. The positive or negative economic impact of the proposed activity on

the local economy of the area in which the proposed activity will take

place;

6. The economic impact of the proposed activity on the Commonwealth as

a whole; and

7. The impact of the proposed activity on the Commonwealth’s ability to

increase the available supply of electrical power for current or future

economic development purposes.

(g) The findings of the executive committee that are approved by a majority of

the members of the executive committee shall be designated as findings of the

commission and shall be submitted to the Public Service Commission. If no

majority decision of the executive committee is reached with respect to the

findings, the report shall so indicate, and each member of the executive

committee may make a written statement of position concerning the proposed

activity by the deadline provided for in the report. Each written statement

shall be included in the report and transmitted along with the report to the

Public Service Commission. Any executive committee member dissenting

from the report, any portion of the report, or any specific findings in the report

may, within one hundred eighty (180) days of the utility filing notice of the

proposed activity, transmit separate dissenting findings to the Public Service

Commission.

(h) The executive committee’s written report, and any dissenting statements

provided to the Public Service Commission, shall be included in any

retirement application made to the Public Service Commission under KRS

278.264, and the Public Service Commission shall not approve any retirement

application without considering all information received from the executive

committee or any member of the executive committee. Any order of the

Public Service Commission in a proceeding under KRS 278.264 shall contain

specific written findings of fact or conclusions of law addressing whether the

executive committee’s findings and recommendations were considered by the

Public Service Commission.

(i) No retirement application to the Public Service Commission under KRS

278.264 shall be deemed administratively complete unless it includes either

the executive committee’s report submitted pursuant to this section or

evidence that more than one hundred eighty (180) days have passed since

notice was submitted to the commission as required in paragraph (b) of this

subsection and no executive committee report or determination has been

provided to the utility.

(8) Notwithstanding any provision of law to the contrary, the executive committee, or

the executive director if authorized by the executive committee, shall have standing

to participate as an intervening party in any case or other proceeding before the

Public Service Commission.

(9) Subject to available funding, the executive committee may employ administrative

staff or third-party consultants with expertise in the subject matter of any study,

examination, or review undertaken by the commission to assist in carrying out the

commission’s functions under this section.

(10) The commission shall cease to exist on December 31, 2035.