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

and Inventory Commission -- Duties -- Membership -- Executive committee --

Executive director -- 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 a vailability 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 additiona l 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 enha nced 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 var iety 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) As used in 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 o r

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 i n 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) (a) The Energy Planning and Inventory Commission is hereby established and

administratively attached to the University of Kentucky Center for Applied

Energy Research, but only for those limited functions and purposes expressly

requested by the commission, including but not limited to accounting, human

resources administration, purchasing assistance, and payroll processing. The

commission shall otherwise be independent from the University of Kentu cky

and shall exercise its authority to conduct energy planning, assess energy

supply adequacy, and review proposed electric generating facility

requirements without interference or influence from any Kentucky executive

branch agency.

(b) The commission shall maintain separate accounts for all funds appropriated to

it, with the University of Kentucky providing accounting, payroll, and

financial services.

(c) The executive director of the commission shall have the sole authority to hire

staff, retain contrac tors and other parties, and otherwise manage the

commission in accordance with applicable law and with human resources

administrative support provided by the University of Kentucky.

(d) Notwithstanding any provision of KRS Chapter 18A to the contrary, the

commission may in its sole discretion identify and determine the

compensation for categories of its professional employees at the amounts it

deems necessary to recruit and retain employees who have the experience,

expertise, and education required to perform their job responsibilities with the

commission.

(e) Notwithstanding any law to the contrary, the commission shall conduct all

procurements necessary for the performance of its duties in accordance with

the procurement procedures outlined in KRS Chapter 45A, but the

commission shall not be subject to any provision of KRS Chapter 45A that

requires the approval of any Finance and Administration Cabinet official for

the commission to proceed with any aspect of the procurement process. The

executive director shall be deemed the chief purchasing officer for the

purposes of conducting procurements for the commission and shall have all

the authority and responsibility with regard to the commission's procurements

as the secretary of the Finance and Administration Cabinet has for

procurements under KRS Chapter 45A. All commission personal service

contracts shall be subject to review by the Government Contract Review

Committee established by KRS 45A.705.

(f) In its bidding and negotiation processes, the commission shall perform its own

bidding and procurement in accordance with the procedures established by

KRS Chapter 45A.

(g) The affairs of the commission shall be governed exclusively by 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 board shall be composed of an eighteen (18) member board

and a five (5) member executive committee of the board. 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, no more than

two (2) of whom shall reside outside of the Commonwealth:

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, nominat ed 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 natur al 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 representin g 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, conv ersion,

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 is established and shall include the

following five (5) members:

1. The chair of the commission board selected under par agraph (e) of this

subsection;

2. The vice chair of the commission board selected under paragraph (e) of

this subsection;

3. One (1) member appointed by the Attorney General who has the same

level of education, training, and professional experience as woul d be

required to serve in the role of chief executive officer or board member

of a company engaged in the production of coal;

4. One (1) member appointed by the Attorney General 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

5. One (1) member elected by the commission board from the commission

board membership. Any vacancy in a n 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 by the

Attorney General to 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 co nfirmed 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 se ssion or the date

that the Senate votes to decline to confirm appointment, and the official who

made the appointment shall appoint a different replacement.

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

the legislative or e xecutive 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 or the

Attorney General, the official who made the appointment 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 or the Attorney General 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 rese arch 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 (8) of this section would

result in the disclosure of confidential information to an execu tive committee

member that is prohibited under subsection (8)(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) (a) The commission shall employ an executive director who shall be selected and

hired by the executive committee, subject to confirmatio n 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 the 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 e vent 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.

(b) The executive director shall be entitled to attend all commission and executive

committee meetings and shall at all times have access to all information,

records, and data considered or produced at those meetings.

(6) (a) The executive director shall have full authority to act on behalf of the

commission in all matters. The commission board, including the executive

committee, shall serve in an advisory capacity to the executive director. The

executive director shall keep the executive committee timely advised of

material decisions relating to the commission, inc luding but not limited to

approval of the commission's annual budget and annual work plan.

(b) The executive director shall only be terminated for cause by majority vote of

all the members of the executive committee, after delivery in writing of the

cause of termination to the executive director and affording him or her the

opportunity for an administrative hearing conducted in accordance with KRS

Chapter 13B.

(c) By a majority vote of all its members, the executive committee may increase

either or both of the following for the executive director as warranted:

1. His or her compensation, not to exceed ten percent (10%) annually; and

2. His or her benefits.

(7) The commission shall be authorized to:

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

subsection (1) of this section;

(b) Assist in fulfilling the executive committee's and the executive director's

mandatory duties regarding review of planned retirement decisions described

in subsection (8) 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 lim ited 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 ene rgy 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;

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 Comm onwealth's electrical grid to meet

demand; and

9. Other topics at the discretion of the executive director;

(d) Through the executive director, request that state agencies, including but not

limited to the Energy and Environment Cabinet and the Office of E nergy

Policy, cooperate with and provide data, records, reports, and other

information that are reasonably necessary for the commission to carry out its

duties and obligations under this section. Requests for data, records, reports or

other information mad e pursuant to this paragraph shall be fulfilled within

thirty (30) days unless the executive director otherwise grants an extension;

and

(e) On or before each December 1, submit a report with recommendations,

including but not limited to recommendations fo r 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.

(8) (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 and rec ommendations from the executive committee and the

executive director, 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 commissio n'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 inclu de 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 or otherwise providing

information to the commission may designate the information, records,

or data provided 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 or otherwise providing

information to the commission may indicate in its response or

submission 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.

4. Any information, records, data, files, documents, or correspondence

submitted by a utility to the commission that the utility has designated

as confidential business information shall be exempt fr om disclosure

under KRS 61.870 to 61.884 to the extent that open disclosure would

permit an unfair commercial advantage to competitors of the utility that

submitted the information.

(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 pow er 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 prio r 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) 1. The findings and recommendations 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 and the utility. 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 provi ded for in the report. Each written

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

report to the Public Service Commission and the utility. Any executive

committee member dissenting from the report, any portion of the report,

or a ny 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 and recommendations to the Public Service

Commission and the utility.

2. The executive committee shall provide the executive director with all

information, records, and data considered in the proposal to retire and

shall include the executive director in all associated deliberations.

Within one hundred eighty (180) days of the utility filin g notice of the

proposed activity, the executive director may submit his or her own

written report with findings and recommendations, a written statement

of position, or dissenting findings and recommendations to the Public

Service Commission and the utility.

(h) The executive committee's written report, the executive director's written

report or position statement, and any dissenting statements provided to the

Public Service Commission and the utility, 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,

the executive director, or any member of the execut ive 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 and the executive director's findings and

recommendations, position statements, and dissenting statements 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 the

executive committee's and the executive director's report, position statements,

and dissenting statements submitte d 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 or executive director report, position s tatement,

or dissenting statement has been provided to the Public Service Commission

or the utility.

(9) (a) The Energy Planning and Inventory Commission fund is hereby established in

the State Treasury and shall be administered by the executive director with the

advice of the commission board. The fund shall be a trust and agency account

and may receive state appropriations, gifts, grants, and federal funds. Monies

in the fund shall only be disbursed for the purposes of carrying out this

section.

(b) Notwithstanding KRS 45.229, state appropriations, gifts, grants, federal funds,

and any interest earnings on those monies not expended at the close of a fiscal

year shall not lapse, but shall be carried forward to the next fiscal year.

(10) Notwithstanding any provision of law to the contrary, the executive committee and

the executive director, jointly or separately, shall have standing to participate as an

intervening party in any case or other proceeding before the Public Service

Commission.

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