Session of 1999
SENATE BILL No. 257
By Committee on Utilities
2-5
9 AN ACT concerning siting of certain electric generation facilities;
10 amending K.S.A. 66-1,159, 66-1,160, 66-1,161, 66-1,162, 66-1,169a
11 and 66-1,169c and K.S.A. 1998 Supp. 66-1,158 and 66-1,169b and
12 repealing the existing sections.
13
14 Be it enacted by the Legislature of the State of Kansas:
15 Section 1. K.S.A. 1998 Supp. 66-1,158 is hereby amended to read as
16 follows: 66-1,158. As used in this act, the following words and phrases
17 shall have the meanings ascribed to them herein:
18 (a) "Commission" means the state corporation commission;.
19 (b) "Electric generation facility" means any physical plant used for
20 the production or generation of electricity or electric power except that
21 the remodeling, reconditioning or retrofitting of any existing physical
22 plant shall not be deemed an addition to an electric generation facility.
23 Such term shall not include a facility or addition to a facility proposed to
24 be located outside this state if: (1) The need for the facility or addition
25 and the reasonableness of its proposed siting is subject to review by the
26 utility regulatory authority of that state; (2) less than 10% of the retail
27 customers on the electric system intended to be served by such facility
28 or addition are located in this state; and (3) such retail customers located
29 in this state number no more than 15,000;
30 (c) (b) "Electric utility" means every public utility, as defined by
31 K.S.A. 66-104, and amendments thereto, which owns, controls, operates
32 or manages any equipment, plant or generating machinery for the pro-
33 duction, transmission, delivery or furnishing, of electricity or electric
34 power;.
35 (d) (c) "Landowner" means any person having an estate or interest
36 in any land, which land is proposed to be acquired by an electric utility
37 in connection with the construction, operation and maintenance of an
38 electric a nuclear generation facility or an addition to an electric a nuclear
39 generation facility;.
40 (d) (1) "Nuclear generation facility or addition to a nuclear genera-
41 tion facility" means: (A) Any physical plant utilizing nuclear energy as
42 the primary fuel for the production or generation of electricity or electric
43 power; or (B) any addition of nuclear generation capacity to an existing
44 generation facility.
45 (2) "Nuclear generation facility or addition to a nuclear generation
46 facility" does not include: (A) Remodeling, reconditioning or retrofitting
47 of an existing nuclear plant; (B) construction of nonnuclear generation
48 capacity at the site of an existing nuclear plant; or (C) any facility or
49 addition to a facility proposed to be located outside this state if: (i) The
50 need for the facility or addition and the reasonableness of its proposed
51 siting is subject to review by the utility regulatory authority of that state;
52 (ii) less than 10% of the retail customers on the electric system intended
53 to be served by such facility or addition are located in this state; and (iii)
54 such retail customers located in this state number no more than 15,000.
55 (e) "Party" means any landowner, electric utility, governmental board
56 or agency, or any other person allowed to intervene in any proceeding
57 under this act;.
58 (f) "Person" means any individual, partnership, corporation or other
59 association of persons.
60 Sec. 2. K.S.A. 66-1,159 is hereby amended to read as follows: 66-
61 1,159. No electric utility may begin site preparation for or construction
62 of an electric a nuclear generation facility or an addition to an electric a
63 nuclear generation facility or exercise the right of eminent domain to
64 acquire any land in connection with site preparation for or construction
65 of any such facility or addition thereto, without first acquiring a permit
66 from the commission. Whenever any such electric utility desires to obtain
67 such a permit, it the utility shall file an application with the commission,
68 setting forth therein that it the utility proposes to construct an electric a
69 nuclear generation facility or an addition to an electric a nuclear gener-
70 ation facility and specifying the description and the total number of acres
71 of land that such utility contemplates is needed in connection with the
72 construction, operation and maintenance of such facility or addition
73 thereto. Also, the electric utility shall file with the application documents
74 and plans which indicate the total planned utilization of a proposed lo-
75 cation for electric generation purposes and documents and plans for util-
76 ization of an alternative location or locations. Such documents and plans
77 with respect to alternative locations shall not be required for additions to
78 existing electric nuclear generation facilities. In addition, the electric util-
79 ity shall file with the application such documents pertaining to the con-
80 struction, operation and maintenance of the proposed electric generation
81 facility or addition to the electric generation facility and such other mat-
82 ters deemed relevant thereto as may be required by rules and regulations
83 of the commission. Thereupon, the commission shall fix a time for a public
84 hearing on such application, which shall be not less than 30 nor more
85 than 180 days from the date the application was filed and shall be con-
86 ducted in accordance with the provisions of the Kansas administrative
87 procedure act, to determine the necessity for the proposed electric gen-
88 eration facility or addition to an electric generation facility and the most
89 reasonable location and size of the proposed electric generation facility
90 or addition to an electric generation facility. The commission shall fix the
91 place for hearing, which may be in the county in which is located the
92 major portion of the land which has been or is proposed to be acquired
93 in connection with the construction, operation and maintenance of the
94 proposed electric generation facility or the addition to the electric gen-
95 eration facility or addition. Such hearing may be held in Topeka.
96 Sec. 3. K.S.A. 66-1,160 is hereby amended to read as follows: 66-
97 1,160. The commission shall publish notice of the time, place and subject
98 matter of such hearing in newspapers having general circulation in the
99 counties in which is located any portion of the land which has been or is
100 proposed to be acquired in connection with the construction, operation
101 and maintenance of the proposed electric nuclear generation facility or
102 addition to an electric a nuclear generation facility once each week for
103 three consecutive weeks, the last publication to be not less than five days
104 before such hearing date. Written notice of such hearing and a copy of
105 the application also shall be served not less than twenty (20) 20 days prior
106 to the hearing date upon all landowners, as shown by the files, records
107 and indexes of the register of deeds of the county in which such land is
108 located, and the chief administrative officer, or any person designated by
109 such officer to receive such service, of the department of economic de-
110 velopment, state board commerce, department of agriculture, state water
111 resources board Kansas water office, department of health and environ-
112 ment, department of transportation, state geological survey, Kansas en-
113 ergy office and the and division of the budget of the department of ad-
114 ministration. In addition to the information contained in the published
115 notice, such written notice shall state that the electric utility has filed the
116 application and supporting documents as required by K.S.A. 66-1,159 and
117 amendments thereto, and that such application and supporting documents
118 are available in the office of the commission for examination and copying
119 by the person or board or agency desiring copies thereof.
120 Sec. 4. K.S.A. 66-1,161 is hereby amended to read as follows: 66-
121 1,161. The commission shall appoint an attorney to represent the interests
122 of the landowners at the hearing and shall allow a reasonable attorney's
123 fee, which shall be taxed as part of the costs thereof. Landowners, at their
124 own expense, may retain counsel to represent their individual interests at
125 such hearing. The chief administrative officer, or any other person or
126 persons designated by such officer, of any governmental board or agency
127 affected by the siting of the proposed electric nuclear generation facility
128 or addition to an electric a nuclear generation facility shall be deemed to
129 meet the requirement for intervention contained in subsection (a)(2) of
130 K.S.A. 77-521 and amendments thereto. Any owner or lessee of land
131 whose estate or interest in such land would not be acquired by the electric
132 utility but would be affected in some other manner by the construction,
133 operation or maintenance of the electric generation facility or addition to
134 an electric generation facility may petition for intervention in accordance
135 with the provisions of K.S.A. 77-521 and amendments thereto.
136 Sec. 5. K.S.A. 66-1,162 is hereby amended to read as follows: 66-
137 1,162. Except as otherwise provided in this act, the rules and regulations
138 adopted by the commission pursuant to K.S.A. 66-106 and amendments
139 thereto to govern the commission's proceedings shall be applicable to any
140 proceeding before the commission under this act. The electric utility shall
141 proceed with the introduction of evidence of the necessity for the pro-
142 posed electric nuclear generation facility or addition to an electric a nu-
143 clear generation facility and of the reasonableness of the proposed loca-
144 tion and size of the electric generation facility or addition to an electric
145 generation facility. The burden of proof on any such matter shall be upon
146 the electric utility and shall be established by a preponderance of the
147 evidence. All parties present or represented by counsel at the hearing
148 shall have an opportunity to be heard and the right to cross-examine any
149 witness appearing before the commission at the hearing. The commission
150 shall cause a transcript to be made of the hearing. All costs of any hearing
151 shall be taxed against the electric utility. The hearing and all parties' ar-
152 guments shall be completed within 90 days after the commencement
153 thereof. At any time after the commencement of the hearing, the electric
154 utility may withdraw its application for the permit required by K.S.A. 66-
155 1,159 and amendments thereto.
156 The commission shall make findings of fact and file such findings with
157 its decision to grant, grant conditioned by such findings or withhold the
158 permit applied for, except that whenever approval of applications are
159 pending with or must be obtained from any state regulatory authority
160 which relate to the operation of any such facility or addition to a facility,
161 the commission shall postpone its decision until proof of the approval or
162 disapproval of any such application is received. In any case where a state
163 regulatory authority cannot render final approval of any such application
164 until the facility or addition to a facility is in actual operation, the com-
165 mission shall accept as proof of approval or disapproval the state regula-
166 tory authority's certification of probable acceptability or unacceptability
167 of an application. Prior to making its determination with respect to the
168 most reasonable location and size of a proposed electric nuclear genera-
169 tion facility or addition to an electric a nuclear generation facility, the
170 commission shall make its determination of whether or not a necessity
171 exists for the electric generation capacity of a proposed electric generation
172 facility or addition to an electric generation a facility. In addition to any
173 other consideration deemed necessary in making such determination, the
174 commission shall consider and make determinations on the following fac-
175 tors: (1) Whether or not the electric generating capacity of the proposed
176 facility or addition to a facility meets or contributes to the meeting of the
177 electrical energy needs of the people of this state considering the probable
178 future statewide electrical energy needs thereof; and (2) whether or not
179 available electrical generating capacity exists within the state that is ca-
180 pable of being distributed economically, reliably, technically and environ-
181 mentally. Whenever the commission determines that a necessity exists for
182 electric generation capacity to be provided by a proposed electric nuclear
183 generation facility or addition to an electric a nuclear generation facility,
184 it the commission shall make its determinations with respect to the most
185 reasonable size and location of any such facility or addition to a facility.
186 In addition to any other consideration deemed necessary in making a
187 determination with respect to the size of a proposed facility or addition
188 to a facility, the commission shall consider the electric utility's total
189 planned utilization of a proposed location for electric generation purposes
190 as it relates to the necessity found by the commission for additional elec-
191 tric generating capacity in the state. In addition to any other consideration
192 deemed necessary in making a determination with respect to the most
193 reasonable location of a proposed facility or addition to a facility, the
194 commission shall consider the availability of natural resources necessary
195 in the operation of a proposed facility or addition to a facility as the same
196 relates to each alternative location submitted by the electric utility as
197 required by the provisions of K.S.A. 66-1,159 and amendments thereto.
198 The location of the existing nuclear generation facility shall be the most
199 reasonable location for any addition to such facility. Upon a determination
200 that a necessity exists for the proposed electric nuclear generation facility
201 or the addition to an electric a nuclear generation facility and that the
202 proposed location and size of such facility or addition thereto are the most
203 reasonable, the commission shall issue to the electric utility a permit to
204 construct such facility or addition thereto, except that the commission
205 may condition such permit with respect to the location and size of the
206 proposed electric nuclear generation facility or addition to an electric a
207 nuclear generation facility to provide for an alternate location or size, or
208 both, thereof, but in no case shall the commission provide for a size larger
209 than that applied for. Upon the issuance of such permit, no local ordi-
210 nance, resolution or regulation shall prohibit the construction of the elec-
211 tric nuclear generation facility or addition to an electric a nuclear gen-
212 eration facility, and the electric utility may proceed with such facility or
213 addition thereto notwithstanding any requirement to obtain any building
214 permit under any local zoning ordinance, resolution or regulation.
215 Sec. 6. K.S.A. 66-1,169a is hereby amended to read as follows: 66-
216 1,169a. In order to more effectively administer the provisions of the Kan-
217 sas electric nuclear generation facility siting act with respect to determin-
218 ing whether or not a necessity exists for a proposed electric nuclear
219 generation facility or addition to an electric a nuclear generation facility,
220 the commission shall compile and maintain a comprehensive statewide
221 electric generation capacity forecast. In compiling and maintaining said
222 forecast, the commission may hold such hearings deemed necessary. The
223 proceedings of any such hearing shall be governed by the rules and reg-
224 ulations adopted by the commission pursuant to K.S.A. 66-106 and
225 amendments thereto. For the purposes of this section, every municipally
226 owned or operated electric utility and every electric utility operating
227 wholly and solely within the legal boundaries of any municipality and
228 within three (3) miles thereof shall furnish to the commission such infor-
229 mation as to electric generation capacity as the commission may require.
230 Sec. 7. K.S.A. 1998 Supp. 66-1,169b is hereby amended to read as
231 follows: 66-1,169b. (a) The provisions of the Kansas electric generation
232 facility siting act shall not apply to: (1) Unit number 3 of the Jeffrey
233 Energy Center; or (2) electric generation facilities that have a capacity of
234 100 megawatts or less and convert wind, solar, biomass, landfill gas or
235 any other renewable source of energy.
236 (b) With regard to a facility proposed to be located outside this state,
237 K.S.A. 66-1,160 and 66-1,161, and amendments thereto, shall not apply
238 and, for purposes of determining the most reasonable location of a pro-
239 posed facility or addition to a facility pursuant to K.S.A. 66-1,162, and
240 amendments thereto, the commission shall consider only the effects on
241 system reliability and economic efficiency.
242 Sec. 8. K.S.A. 66-1,169c is hereby amended to read as follows: 66-
243 1,169c. This act and the act of which it is amendatory shall be known and
244 cited as the "Kansas electric nuclear generation facility siting act."
245 New Sec. 9. Any electric generation facility, or addition thereto, for
246 which a permit application was pending under the electric generation
247 facility siting act as it existed immediately before the effective date of this
248 act shall be required to have such permit only if the facility is required
249 to have a permit pursuant to this act.
250 Sec. 10. K.S.A. 66-1,159, 66-1,160, 66-1,161, 66-1,162, 66-1,169a
251 and 66-1,169c and K.S.A. 1998 Supp. 66-1,158 and 66-1,169b are hereby
252 repealed.
253 Sec. 11. This act shall take effect and be in force from and after its
254 publication in the Kansas register.