As Amended by House Committee
Session of 1999
HOUSE BILL No. 2400
By Committee on Utilities
2-10
10 AN ACT concerning siting of certain electric generation facilities elec-
11 tric service; relating to siting and construction of certain electric
12 generation facilities and electric transmission lines; relating to
13 regulation and taxation of owners and operators of certain elec-
14 tric generation facilities; amending K.S.A. 66-1,159, 66-1,160, 66-
15 1,161, 66-1,162, 66-1,169a and 66-1,169c and K.S.A. 1998 Supp., 66-
16 1,169c, 66-1,182 and 79-5a01 and K.S.A. 1998 Supp. 66-104,
17 66-1,158 and 66-1,169b and repealing the existing sections.
18
19 Be it enacted by the Legislature of the State of Kansas:
20 Section 1. K.S.A. 1998 Supp. 66-1,158 is hereby amended to read as
21 follows: 66-1,158. As used in this act, the following words and phrases
22 shall have the meanings ascribed to them herein:
23 (a) "Commission" means the state corporation commission;.
24 (b) "Electric generation facility" means any physical plant used for
25 the production or generation of electricity or electric power except that
26 the remodeling, reconditioning or retrofitting of any existing physical
27 plant shall not be deemed an addition to an electric generation facility.
28 Such term shall not include a facility or addition to a facility proposed to
29 be located outside this state if: (1) The need for the facility or addition
30 and the reasonableness of its proposed siting is subject to review by the
31 utility regulatory authority of that state; (2) less than 10% of the retail
32 customers on the electric system intended to be served by such facility
33 or addition are located in this state; and (3) such retail customers located
34 in this state number no more than 15,000;
35 (c) (b) "Electric utility" means every public utility, as defined by
36 K.S.A. 66-104, and amendments thereto, which owns, controls, operates
37 or manages any equipment, plant or generating machinery for the pro-
38 duction, transmission, delivery or furnishing, of electricity or electric
39 power;.
40 (d) (c) "Landowner" means any person having an estate or interest
41 in any land, which land is proposed to be acquired by an electric utility
42 in connection with the construction, operation and maintenance of an
43 electric a nuclear generation facility or an addition to an electric a nuclear
HB 2400--Am.
2
1 generation facility;.
2 (d) (1) "Nuclear generation facility or addition to a nuclear genera-
3 tion facility" means: (A) Any physical plant utilizing nuclear energy as
4 the primary fuel for the production or generation of electricity or electric
5 power; or (B) any addition of nuclear generation capacity to an existing
6 generation facility.
7 (2) "Nuclear generation facility or addition to a nuclear generation
8 facility" does not include: (A) Remodeling, reconditioning or retrofitting
9 of an existing nuclear plant; (B) construction of nonnuclear generation
10 capacity at the site of an existing nuclear plant; or (C) any facility or
11 addition to a facility proposed to be located outside this state if: (i) The
12 need for the facility or addition and the reasonableness of its proposed
13 siting is subject to review by the utility regulatory authority of that state;
14 (ii) less than 10% of the retail customers on the electric system intended
15 to be served by such facility or addition are located in this state; and (iii)
16 such retail customers located in this state number no more than 15,000.
17 (e) "Party" means any landowner, electric utility, governmental board
18 or agency, or any other person allowed to intervene in any proceeding
19 under this act;.
20 (f) "Person" means any individual, partnership, corporation or other
21 association of persons.
22 Sec. 2. K.S.A. 66-1,159 is hereby amended to read as follows: 66-
23 1,159. No electric utility may begin site preparation for or construction
24 of an electric a nuclear generation facility or an addition to an electric a
25 nuclear generation facility or exercise the right of eminent domain to
26 acquire any land in connection with site preparation for or construction
27 of any such facility or addition thereto, without first acquiring a permit
28 from the commission. Whenever any such electric utility desires to obtain
29 such a permit, it the utility shall file an application with the commission,
30 setting forth therein that it the utility proposes to construct an electric a
31 nuclear generation facility or an addition to an electric a nuclear gener-
32 ation facility and specifying the description and the total number of acres
33 of land that such utility contemplates is needed in connection with the
34 construction, operation and maintenance of such facility or addition
35 thereto. Also, the electric utility shall file with the application documents
36 and plans which indicate the total planned utilization of a proposed lo-
37 cation for electric generation purposes and documents and plans for util-
38 ization of an alternative location or locations. Such documents and plans
39 with respect to alternative locations shall not be required for additions to
40 existing electric nuclear generation facilities. In addition, the electric util-
41 ity shall file with the application such documents pertaining to the con-
42 struction, operation and maintenance of the proposed electric generation
43 facility or addition to the electric generation facility and such other mat-
HB 2400--Am.
3
1 ters deemed relevant thereto as may be required by rules and regulations
2 of the commission. Thereupon, the commission shall fix a time for a public
3 hearing on such application, which shall be not less than 30 nor more
4 than 180 days from the date the application was filed and shall be con-
5 ducted in accordance with the provisions of the Kansas administrative
6 procedure act, to determine the necessity for the proposed electric gen-
7 eration facility or addition to an electric generation facility and the most
8 reasonable location and size of the proposed electric generation facility
9 or addition to an electric generation facility. The commission shall fix the
10 place for hearing, which may be in the county in which is located the
11 major portion of the land which has been or is proposed to be acquired
12 in connection with the construction, operation and maintenance of the
13 proposed electric generation facility or the addition to the electric gen-
14 eration facility or addition. Such hearing may be held in Topeka.
15 Sec. 3. K.S.A. 66-1,160 is hereby amended to read as follows: 66-
16 1,160. The commission shall publish notice of the time, place and subject
17 matter of such hearing in newspapers having general circulation in the
18 counties in which is located any portion of the land which has been or is
19 proposed to be acquired in connection with the construction, operation
20 and maintenance of the proposed electric nuclear generation facility or
21 addition to an electric a nuclear generation facility once each week for
22 three consecutive weeks, the last publication to be not less than five days
23 before such hearing date. Written notice of such hearing and a copy of
24 the application also shall be served not less than twenty (20) 20 days prior
25 to the hearing date upon all landowners, as shown by the files, records
26 and indexes of the register of deeds of the county in which such land is
27 located, and the chief administrative officer, or any person designated by
28 such officer to receive such service, of the department of economic de-
29 velopment, state board commerce, department of agriculture, state water
30 resources board Kansas water office, department of health and environ-
31 ment, department of transportation, state geological survey, Kansas en-
32 ergy office and the and division of the budget of the department of ad-
33 ministration. In addition to the information contained in the published
34 notice, such written notice shall state that the electric utility has filed the
35 application and supporting documents as required by K.S.A. 66-1,159 and
36 amendments thereto, and that such application and supporting documents
37 are available in the office of the commission for examination and copying
38 by the person or board or agency desiring copies thereof.
39 Sec. 4. K.S.A. 66-1,161 is hereby amended to read as follows: 66-
40 1,161. The commission shall appoint an attorney to represent the interests
41 of the landowners at the hearing and shall allow a reasonable attorney's
42 fee, which shall be taxed as part of the costs thereof. Landowners, at their
43 own expense, may retain counsel to represent their individual interests at
HB 2400--Am.
4
1 such hearing. The chief administrative officer, or any other person or
2 persons designated by such officer, of any governmental board or agency
3 affected by the siting of the proposed electric nuclear generation facility
4 or addition to an electric a nuclear generation facility shall be deemed to
5 meet the requirement for intervention contained in subsection (a)(2) of
6 K.S.A. 77-521 and amendments thereto. Any owner or lessee of land
7 whose estate or interest in such land would not be acquired by the electric
8 utility but would be affected in some other manner by the construction,
9 operation or maintenance of the electric generation facility or addition to
10 an electric generation facility may petition for intervention in accordance
11 with the provisions of K.S.A. 77-521 and amendments thereto.
12 Sec. 5. K.S.A. 66-1,162 is hereby amended to read as follows: 66-
13 1,162. Except as otherwise provided in this act, the rules and regulations
14 adopted by the commission pursuant to K.S.A. 66-106 and amendments
15 thereto to govern the commission's proceedings shall be applicable to any
16 proceeding before the commission under this act. The electric utility shall
17 proceed with the introduction of evidence of the necessity for the pro-
18 posed electric nuclear generation facility or addition to an electric a nu-
19 clear generation facility and of the reasonableness of the proposed loca-
20 tion and size of the electric generation facility or addition to an electric
21 generation facility. The burden of proof on any such matter shall be upon
22 the electric utility and shall be established by a preponderance of the
23 evidence. All parties present or represented by counsel at the hearing
24 shall have an opportunity to be heard and the right to cross-examine any
25 witness appearing before the commission at the hearing. The commission
26 shall cause a transcript to be made of the hearing. All costs of any hearing
27 shall be taxed against the electric utility. The hearing and all parties' ar-
28 guments shall be completed within 90 days after the commencement
29 thereof. At any time after the commencement of the hearing, the electric
30 utility may withdraw its application for the permit required by K.S.A. 66-
31 1,159 and amendments thereto.
32 The commission shall make findings of fact and file such findings with
33 its decision to grant, grant conditioned by such findings or withhold the
34 permit applied for, except that whenever approval of applications are
35 pending with or must be obtained from any state regulatory authority
36 which relate to the operation of any such facility or addition to a facility,
37 the commission shall postpone its decision until proof of the approval or
38 disapproval of any such application is received. In any case where a state
39 regulatory authority cannot render final approval of any such application
40 until the facility or addition to a facility is in actual operation, the com-
41 mission shall accept as proof of approval or disapproval the state regula-
42 tory authority's certification of probable acceptability or unacceptability
43 of an application. Prior to making its determination with respect to the
HB 2400--Am.
5
1 most reasonable location and size of a proposed electric nuclear genera-
2 tion facility or addition to an electric a nuclear generation facility, the
3 commission shall make its determination of whether or not a necessity
4 exists for the electric generation capacity of a proposed electric generation
5 facility or addition to an electric generation a facility. In addition to any
6 other consideration deemed necessary in making such determination, the
7 commission shall consider and make determinations on the following fac-
8 tors: (1) Whether or not the electric generating capacity of the proposed
9 facility or addition to a facility meets or contributes to the meeting of the
10 electrical energy needs of the people of this state considering the probable
11 future statewide electrical energy needs thereof; and (2) whether or not
12 available electrical generating capacity exists within the state that is ca-
13 pable of being distributed economically, reliably, technically and environ-
14 mentally. Whenever the commission determines that a necessity exists for
15 electric generation capacity to be provided by a proposed electric nuclear
16 generation facility or addition to an electric a nuclear generation facility,
17 it the commission shall make its determinations with respect to the most
18 reasonable size and location of any such facility or addition to a facility.
19 In addition to any other consideration deemed necessary in making a
20 determination with respect to the size of a proposed facility or addition
21 to a facility, the commission shall consider the electric utility's total
22 planned utilization of a proposed location for electric generation purposes
23 as it relates to the necessity found by the commission for additional elec-
24 tric generating capacity in the state. In addition to any other consideration
25 deemed necessary in making a determination with respect to the most
26 reasonable location of a proposed facility or addition to a facility, the
27 commission shall consider the availability of natural resources necessary
28 in the operation of a proposed facility or addition to a facility as the same
29 relates to each alternative location submitted by the electric utility as
30 required by the provisions of K.S.A. 66-1,159 and amendments thereto.
31 The location of the existing nuclear generation facility shall be the most
32 reasonable location for any addition to such facility. Upon a determination
33 that a necessity exists for the proposed electric nuclear generation facility
34 or the addition to an electric a nuclear generation facility and that the
35 proposed location and size of such facility or addition thereto are the most
36 reasonable, the commission shall issue to the electric utility a permit to
37 construct such facility or addition thereto, except that the commission
38 may condition such permit with respect to the location and size of the
39 proposed electric nuclear generation facility or addition to an electric a
40 nuclear generation facility to provide for an alternate location or size, or
41 both, thereof, but in no case shall the commission provide for a size larger
42 than that applied for. Upon the issuance of such permit, no local ordi-
43 nance, resolution or regulation shall prohibit the construction of the elec-
HB 2400--Am.
6
1 tric nuclear generation facility or addition to an electric a nuclear gen-
2 eration facility, and the electric utility may proceed with such facility or
3 addition thereto notwithstanding any requirement to obtain any building
4 permit under any local zoning ordinance, resolution or regulation.
5 Sec. 6. K.S.A. 66-1,169a is hereby amended to read as follows: 66-
6 1,169a. In order to more effectively administer the provisions of the Kan-
7 sas electric nuclear generation facility siting act with respect to determin-
8 ing whether or not a necessity exists for a proposed electric nuclear
9 generation facility or addition to an electric a nuclear generation facility,
10 the commission shall compile and maintain a comprehensive statewide
11 electric generation capacity forecast. In compiling and maintaining said
12 forecast, the commission may hold such hearings deemed necessary. The
13 proceedings of any such hearing shall be governed by the rules and reg-
14 ulations adopted by the commission pursuant to K.S.A. 66-106 and
15 amendments thereto. For the purposes of this section, every municipally
16 owned or operated electric utility and every electric utility operating
17 wholly and solely within the legal boundaries of any municipality and
18 within three (3) miles thereof shall furnish to the commission such infor-
19 mation as to electric generation capacity as the commission may require.
20 Sec. 7. K.S.A. 1998 Supp. 66-1,169b is hereby amended to read as
21 follows: 66-1,169b. (a) The provisions of the Kansas electric generation
22 facility siting act shall not apply to: (1) Unit number 3 of the Jeffrey
23 Energy Center; or (2) electric generation facilities that have a capacity of
24 100 megawatts or less and convert wind, solar, biomass, landfill gas or
25 any other renewable source of energy.
26 (b) With regard to a facility proposed to be located outside this state,
27 K.S.A. 66-1,160 and 66-1,161, and amendments thereto, shall not apply
28 and, for purposes of determining the most reasonable location of a pro-
29 posed facility or addition to a facility pursuant to K.S.A. 66-1,162, and
30 amendments thereto, the commission shall consider only the effects on
31 system reliability and economic efficiency.
32 Sec. 8. K.S.A. 66-1,169c is hereby amended to read as follows: 66-
33 1,169c. This act and the act of which it is amendatory shall be known and
34 cited as the "Kansas electric nuclear generation facility siting act."
35 New Sec. 9. Any electric generation facility, or addition thereto, for
36 which a permit application was pending under the electric generation
37 facility siting act as it existed immediately before the effective date of this
38 act shall be required to have such permit only if the facility is required
39 to have a permit pursuant to this act.
40 New Sec. 10. The department of health and environment
41 and the chief engineer of the division of water resources of the
42 department of agriculture shall consolidate all hearings by the de-
43 partment or the chief engineer related to the siting or construction
HB 2400--Am.
7
1 of any physical plant to be used for the production or generation
2 of electricity or electric power.
3 Sec. 11. K.S.A. 66-1,182 is hereby amended to read as follows:
4 66-1,182. (a) The provisions of this act shall not apply to:
5 (1) Any electric transmission line to be constructed solely on an ease-
6 ment where there currently exists one or more electric transmission lines
7 if the easement is not within the corporate limits of any city or within
8 three miles outside the corporate limits of any city; or
9 (2) any electric utility which complies with the provisions of the
10 national environmental policy act of 1969 with regard to the siting
11 of electric transmission lines.
12 (b) An electric utility may negotiate to construct an electric trans-
13 mission line on right-of-way of another electric utility. If the two electric
14 utilities cannot reach an agreement regarding construction of such line,
15 the commission shall mediate the dispute.
16 (c) No environmental study shall be required for construction of an
17 electric transmission line on right-of-way where there currently exists one
18 or more electric transmission lines.
19 Sec. 12. K.S.A. 1998 Supp. 66-104 is hereby amended to read
20 as follows: 66-104. (a) The term "public utility," as used in this act,
21 shall be construed to mean every corporation, company, individ-
22 ual, association of persons, their trustees, lessees or receivers, that
23 now or hereafter may own, control, operate or manage, except for
24 private use, any equipment, plant or generating machinery, or any
25 part thereof, for the transmission of telephone messages or for the
26 transmission of telegraph messages in or through any part of the
27 state, or the conveyance of oil and gas through pipelines in or
28 through any part of the state, except pipelines less than 15 miles
29 in length and not operated in connection with or for the general
30 commercial supply of gas or oil, and all companies for the produc-
31 tion, transmission, delivery or furnishing of heat, light, water or
32 power. No cooperative, cooperative society, nonprofit or mutual
33 corporation or association which is engaged solely in furnishing
34 telephone service to subscribers from one telephone line without
35 owning or operating its own separate central office facilities, shall
36 be subject to the jurisdiction and control of the commission as
37 provided herein, except that it shall not construct or extend its
38 facilities across or beyond the territorial boundaries of any tele-
39 phone company or cooperative without first obtaining approval of
40 the commission. As used herein, the term "transmission of tele-
41 phone messages" shall include the transmission by wire or other
42 means of any voice, data, signals or facsimile communications, in-
43 cluding all such communications now in existence or as may be
HB 2400--Am.
8
1 developed in the future.
2 (b) The term "public utility" shall also include that portion of
3 every municipally owned or operated electric or gas utility located
4 outside of and more than three miles from the corporate limits of
5 such municipality, but nothing in this act shall apply to a munici-
6 pally owned or operated utility, or portion thereof, located within
7 the corporate limits of such municipality or located outside of such
8 corporate limits but within three miles thereof except as provided
9 in K.S.A. 66-131a, and amendments thereto.
10 (c) Except as herein provided, the power and authority to con-
11 trol and regulate all public utilities and common carriers situated
12 and operated wholly or principally within any city or principally
13 operated for the benefit of such city or its people, shall be vested
14 exclusively in such city, subject only to the right to apply for relief
15 to the corporation commission as provided in K.S.A. 66-133, and
16 amendments thereto, and to the provisions of K.S.A. 66-131a and
17 K.S.A. 1998 Supp. 66-104e, and amendments thereto. A transit sys-
18 tem principally engaged in rendering local transportation service
19 in and between contiguous cities in this and another state by means
20 of street railway, trolley bus and motor bus lines, or any combi-
21 nation thereof, shall be deemed to be a public utility as that term
22 is used in this act and, as such, shall be subject to the jurisdiction
23 of the commission.
24 (d) The term "public utility" shall not include any activity of an
25 otherwise jurisdictional corporation, company, individual, associ-
26 ation of persons, their trustees, lessees or receivers as to the mar-
27 keting or sale of compressed natural gas for end use as motor ve-
28 hicle fuel.
29 (e) The term "public utility" shall not include any activity of an oth-
30 erwise jurisdictional entity as to the generation, marketing and sale of
31 electricity generated by a nonnuclear electric generation facility construc-
32 tion no portion of which is included in the rate base of: (1) An electric
33 public utility that is subject to rate regulation by the state corporation
34 commission; (2) any cooperative, as defined by K.S.A. 17-4603 and
35 amendments thereto, or any nonstock member-owned cooperative cor-
36 poration incorporated in this state; or (3) a municipally owned or oper-
37 ated electric utility.
38 New Sec. 13. (a) As used in this section, "independent power
39 producer property" means property used solely in the generation,
40 marketing and sale of electricity generated by an electric gener-
41 ation facility no portion of which is included in the rate base of:
42 (1) An electric public utility that is subject to rate regulation by the
43 state corporation commission; (2) a cooperative, as defined by
HB 2400--Am.
9
1 K.S.A. 17-4603 and amendments thereto, or a nonstock member-
2 owned cooperative corporation incorporated in this state; or (3) a
3 municipally owned or operated electric utility.
4 (b) For all taxable years commencing on or after July 1, 1999,
5 independent power producer property is commercial and indus-
6 trial property for the purposes of taxation of real property and
7 tangible personal property.
8 Sec. 14. K.S.A. 79-5a01 is hereby amended to read as follows:
9 79-5a01. (a) As used in this act, the terms "public utility" or "public
10 utilities" shall mean every individual, company, corporation, as-
11 sociation of persons, lessees or receivers that now or hereafter are
12 in control, manage or operate a business of:
13 (1) A railroad or railroad corporation if such railroad or rail-
14 road corporation owns or holds, by deed or other instrument, an
15 interest in right-of-way, track, franchise, roadbed or trackage in
16 this state;
17 (2) transmitting to, from, through or in this state telegraphic
18 messages;
19 (3) transmitting to, from, through or in this state telephonic
20 messages;
21 (4) transporting or distributing to, from, through or in this
22 state natural gas, oil or other commodities in pipes or pipelines,
23 or engaging primarily in the business of storing natural gas in an
24 underground formation;
25 (5) generating, conducting or distributing to, from, through or
26 in this state electric power;
27 (6) transmitting to, from, through or in this state water if for
28 profit or subject to regulation of the state corporation commission;
29 (7) transporting to, from, through or in this state cargo or pas-
30 sengers by means of any vessel or boat used in navigating any of
31 the navigable watercourses within or bordering upon this state.
32 (b) The terms "public utility" or "public utilities" shall not in-
33 clude: (1) Rural water districts established under the laws of the
34 state of Kansas; or (2) any individual, company, corporation, as-
35 sociation of persons, lessee or receiver owning or operating an oil
36 or natural gas production gathering line which is situated within
37 one county in this state and does not cross any state boundary line;
38 or (3) any individual, company, corporation, association of persons,
39 lessee or receiver owning any vessel or boat operated upon the
40 surface of any manmade waterway located entirely within one
41 county in the state.; or (4) for all taxable years commencing on or after
42 July 1, 1999, the business of generating, marketing and selling electricity
43 generated by a nonnuclear electric generation facility no portion of which
HB 2400--Am.
10
1 is included in the rate base of: (A) An electric public utility that is subject
2 to rate regulation by the state corporation commission; (B) a cooperative,
3 as defined by K.S.A. 17-4603 and amendments thereto, or a nonstock
4 member-owned cooperative corporation incorporated in this state; or (C)
5 a municipally owned or operated electric public utility.
6 Sec. 10. 15. K.S.A. 66-1,159, 66-1,160, 66-1,161, 66-1,162, 66-1,169a
7 and 66-1,169c and K.S.A. 1998 Supp., 66-1,169c, 66-1,182 and 79-
8 5a01 and K.S.A. 1998 Supp. 66-104, 66-1,158 and 66-1,169b are
9 hereby repealed.
10 Sec. 11. 16. This act shall take effect and be in force from and after
11 its publication in the Kansas register.