Yesterday was the first scoping meeting for the Xcel Energy/ATC Badger Coulee transmission line — I must confess, I was booked, so I couldn’t get there. But there are more next week and the week after.
Here’s the Public Service Commission of Wisconsin’s notice:
And the specifics:
Why go? Because this is where you get to let them know what should be addressed in the Environmental Impact Statement, and in Wisconsin, it addresses need! “The EIS will cover the need for the project, its cost, and potential environmental, community, and private property impacts. ” Let’s see them define the need on this one, other than stuffing money in their grubby big pockets.
So saddle up and let’s let them know what we think they should look at through their magnifying glass!
NOW is the time to contact James LaFave, Administrative Law Judge, and ask that the record be kept open for at least 10 days after the FEIS is released (July 11, 2014 and possibly later) for public review and comments on the adequacy of the Final Environmental Impact Statement. Take a few seconds and send an email (letters might not get there by May 30 unless you send Priority or Express). Reference docket numbers OAH 60-2500-30782 and PUC 12-1053 and 12-1337.
I’m tired of watching this project march through the “process” with no scrutiny, with the public shut out, with no party asking the hard questions. The “hearing” last Monday was a joke, and it was not funny.
All that’s left is public comments this week, and briefing and the ALJ’s report and recommendation to the Commission. Based on the record, it’s not hard to imagine how that will play out. Then it goes to the Commission for a decision.
BUT IT’S NOT TOO LATE. There’s a very clear problem that should be a no-brainer, and it should be something everyone is in favor of — it’s the notion that the public should be able to comment on the adequacy of the FEIS. But nooooo, there’s resistance, and from Commerce, responsible for the FEIS!
CETF and No CapX filed a Motion two weeks ago for extension of the Public Comment period to allow comments on the FEIS after it is released, because the public, out there in the project area, on the ground, is best able to tell what has been included and what is missing, and if the DEIS Comments were taken into account. But if the Dept. of Commerce has anything to say about it, the public will have no opportunity to comment on the Final Environmental Impact Statement on the ITC Midwest MN/IA 345 kV transmission project.
WHAT? Yes, it’s true. The public comment period closes at 4:30 p.m. on Friday, May 30, just a few days from now, but the Final Environmental Impact Statement will not be released until July 11, 2014, IF THEN, because there were so many comments, over 300, so it will likely be released even later. What they do is review all the comments and correct/supplement the Environmental Impact Statement as needed, supposedly. But that FEIS is not even completed, much less part of the record, until all is done, all public opportunities to participate are closed, and only parties have opportunity to comment, and in “reply” briefs. This is NOT OK! So CETF and No CapX 2020 filed this:
So far there are
is only two one Replies y, and that’s ITC Midwest (filed just as I sent email about this, grrrrr) and the Dept. of Commerce, objecting to leaving the record open for public comments (remember, it’s COMMERCE, not the Environmental Quality Board in charge of environmental review for utility infrastructure projects):
The Dept. of Commerce points? Their reasons opposing keeping the record open for public comment? Commerce argues (and we note):
1. Commerce argues that other Scheduling Orders don’t require a comment period on FEIS, and “such a comment period is an exception and not the practice. (… so because the judge didn’t address a comment period in his scheduling order, that means it’s right? NO! The comment period has been extended when we’ve requested it, and if we’re not there to request it, no one does. That does NOT mean it’s right. It means that those present don’t give a rodent’s rump about environmental review and/or public participation, that’s all.)
2. Commerce argues that MEPA does not require a comment period on the FIES. “Though MEPA anticipates a comment period on an FEIS, and Minnesota Rule 4410.2800 requires a 10-day comment period for an FEIS, this requirement is inapplicable to environmental review conducted in accordance with the Power Plant Siting Act.” (MEPA does anticipate a comment period on an FEIS, and MEPA trumps the silence in the rules under the Power Plant Siting Act. The PPSA rules do not prohibit a comment period, they are silent, and we’re working to address this in rulemaking right now.)
3. Commerce argues that Minnesota Rule 1405.1400 does not provide for the record remaining open to receive comments on the FEIS… “the record of the hearing shall be closed at a date to be set by the administrative law judge.” (The ALJ can set that date at any time he wants, there is no prohibition, and it is silent as to remaining open for comments on FEIS, there is nothing there, and we’re requesting the ALJ set that date to receive comments on the FEIS.)
4. Commerce argues that we “incorrectly claim that the lack of a comment period on the FEIS in the HRL Project was problematic” and that it didn’t matter that the EIS was grossly in error and the Commission was caught unawares. “DOC-EERA disagrees that a particular segment of existing transmission line near the Byllesby Dam was not analyzed in the FEIS for the HRL (sic) Project.” (It wasn’t “anaylzed” by any stretch of the imagination, Commerce asked Applicants to send them some info on it, and then Commerce stuck that in the FEIS as an appendix — that is NOT environmental analysis, there’s no vetting, no analysis, just putting the Applicants info in the document without any comment whatsoever.)
5. Commerce argues that “no public purpose would be served by extension of the comment period on the Final EIS. The Final EIS is final. No changes or amendments would be made to the document based on comments received during an FEIS public comment period. To the extent comments on the FEIS would be helpful for the Commission, they would best be addressed to the adequacy of the FEIS.” They then argue that the issues we’ve raised about the “HRL” project are not a criteria for determining adequacy. (ummmm, we’re asking for time to review the FEIS for adequacy. ??? This is bizarre. And the specific errors in the “HRL” FEIS were factors that the Commission’s decision turned on, so accuracy is crucial regarding those factors.)
6. Commerce argues that “Finally, the motion is also procedurally improper because motion practice is outside the scope of the limited intervention rights the ALJ granted to CETF and No CapX on January 31, 2014. (As if it’s not enough that Commerce is arguing against public participation, transparency, openness, and review of its work, there’s no party in this docket advocating for the public interest, there’s no party in this docket that cares about adequacy of environmental review. We’ve brought this Motion in a very disturbing vacuum.)
The rules for environmental review, the Environmental Quality Board rules, require a time for comments after release of the FEIS:
Interested persons may submit written comments on the adequacy of the final EIS to the RGU or the EQB, if applicable, for a period of not less than ten days following publication in the EQB Monitor of the notice of availability of the final EIS. The notice of availability of the final EIS shall indicate when the comment period expires.
The PUC’s rules do not. Nothing… nada…
The Minnesota Environmental Policy Act (MEPA) specifies that the “final detailed environmental impact statement… shall accompany the proposal through an administrative review process.”
Prior to the preparation of a final environmental impact statement, the governmental unit responsible for the statement shall consult with and request the comments of every governmental office which has jurisdiction by law or special expertise with respect to any environmental effect involved. Copies of the drafts of such statements and the comments and views of the appropriate offices shall be made available to the public. The final detailed environmental impact statement and the comments received thereon shall precede final decisions on the proposed action and shall accompany the proposal through an administrative review process.
Minn. Stat. §116D.04, Subd. 6a.Comments (emphasis added).
Who gives a rodent’s rump about all this? CETF and No CapX 2020 do.
We’re in rulemaking right now, and trying to address these problems, problems that leave us filing Motions for Advisory Task Forces; for extensions of deadlines to intervene for landowners who did not receive lawful notice; for extensions of public comment periods where new information is entered into the record very late in the process, i.e., in the public or evidentiary hearings; and extensions of public comment periods when the FEIS is released after everything is said and done.
Granted, as the record in the Brookings case showed, the Dept. of Commerce does not represent the “public interest.” Clearly Commerce doesn’t care, but after all, it’s the Dept. of COMMERCE, not the Environmental Quality Board. But in this docket, how is the public interest represented? There are no intervenors representing the public interest. CETF and No CapX are limited intervenors, and are working to represent a broader interest but again, we’re limited, very limited intervenors. Problems have come up in this case. Commerce testimony does a 180, from recommending denial to not recommending denial (but not recommending approval) and of the parties granted permission to ask questions, NO ONE HAS EVEN ONE QUESTION ABOUT IT. The “Evidentiary Hearing” is essentially on the record, and all the witnesses are rammed through between 1 p.m. and 3:40 p.m. when the hearing was adjourned. The FEIS is being released after the comment period is closed. Where the public is shut out, who will stand up and make sure the public is included? Will the Public Utilities Commission Public Advisor recommend the public be included? Will the Public Utilities Commission staff recommend the public be included?
Remember, Friday at 4:30 is the deadline for Public Comments, comments about anything in the Certificate of Need and/or Routing dockets. This is it. NOW IS THE TIME. Send comments to:
Anthony J. Kampling has filed a request to Intervene in the Badger Coulee docket. Anthony Kampling is the husband of Patricia Kampling, CEO of Alliant Energy. As we say in transmission, “It’s all connected.” So connected that we now see that ATC’s Badger Coulee project in Wisconsin (which is 1/2 of MVP5) has a “Route B” that goes right over the land of Alliant Energy CEO Kampling’s home. Alliant Energy is related to ITC Midwest via transfer of transmission assets to ITC Midwest in 2007… Alliant Energy is the umbrella over WPL and IPL, which in 2007 sold its transmission assets to ATC, and also to the new ITC Midwest, including the transmission in southern Minnesota serving the Bent Tree wind project, owned by Alliant’s Wisconsin Power and Light (WPL). There have been issues… There may be issues in their future… ITC Midwest, now owner of Alliant’s transmission, is with ATC the promoter of the other 1/2 of MVP5, not Badger Coulee, but the southern part of the “V” called “Dubuque to Spring Green to Cardinal,” MISO project 3127, and ITCM is the applicant for 1/2 of MVP3, the MN/IA MVP3 transmission project, the other half to be owned by MidAmerican. What a hoot! It’s indeed all connected.
The Kampling’s property at 4827 Enchanted Valley, Middleton, WI, will be affected by the Badger Coulee transmission line. With a 2012 tax assessment on this 40+ acre parcel set at $1,088,700, the devaluation would be significant should this transmission line go through their land.
About Patricia Kampling, from Alliant’s website:
And an interesting interview when she became the CEO in the Wisconsin State Journal, Executive Q&A: Blackouts lit way to energy career for Alliant’s Kampling, in which she acknowledges the new normal of demand:
Q: Do you anticipate any kind of growth for the company? Alliant recently bought a gas-fired power plant in Neenah and plans to buy another in Beloit; the company also is building a wind farm in Iowa. Is any other construction in the works?
A: I don’t know; customers are not using more electricity. We’re predicting flat sales for years to come. There’s been a slight increase in commercial use — a fraction of 1 percent — but that’s been offset by a decline in residential electricity use. People are becoming more energy-wise.
I guess she didn’t get the memo not to bring work home with her. It will be interesting to watch them navigate the Wisconsin Public Service Commission process from the outside, as an affected party. It will no doubt be a learning experience for them, and I hope their experience will have an impact on PSC process and increasing the ability of landowners to participate.
CETF and No CapX2020 are intervenors, LIMITED intervenors, in the ITC Midwest MN/IA Transmission Project docket at the Minnesota Public Utilities Commission.
Yesterday was to be the first day of the ITC hearings. Well, it was, but the evening before, I got a call from Julia Anderson, Asst. A.G. for Dept. of Commerce, saying that there was a significant change, and that Dr. Steve Rakow would be reversing his testimony, a complete 180, from recommending denial of the Certificate of Need, to ???
Last minute to say the least.
The hearing convened, and we were told that, yes, Dr. Rakow would do this 180, and would submit a statement (no testimony?!?). I objected of course, but oh well, CETF and No CapX are only “limited” intervenors, and there’s no one Intervening who opposes the project. The so-called environmental organizations that intervened, dubbing themselves the “Clean Energy Intervenors” support this project and have had nothing to say in this, no discovery, no comments on the DEIS, and testimony that made their “it’s for wind” statements with no supporting evidence that it is for wind (but we know it’s not).
So let’s look at this statement.
OK… a number of things come to mind. First, before the hearings started, I requested that the public testimony be under oath, with members of the public being able to opt out if they so wished, and I requested this specifically because I had heard two Commissioners in deliberations discount public testimony because “it was not under oath.” Judge LeFave said he would not swear in the witnesses. I asked that this decision be “on the record” and he refused. I could have made more of this, didn’t, and obviously should have.
“Facts” as a legal term, is a term of art, with very specific meaning. In addition, the Minnesota Rules have many provisions regarding being sworn in, and regarding testimony regarding “a fact at issue” which is the case here:
Here are a few citations regarding witnesses, oath/affirmation, and facts:
Any party may be a witness and may present witnesses on the party’s behalf at the hearing. All oral testimony at the hearing shall be under oath or affirmation. At the request of a party or upon the judge’s own motion, the judge shall exclude witnesses from the hearing room so that they cannot hear the testimony of other witnesses.
1400.7800 CONDUCT OF HEARING, Subp. G. Any party may be a witness or may present other persons as witnesses at the hearing. All evidentiary testimony presented to prove or disprove a fact at issue shall be under oath or affirmation.
1405.0800 PUBLIC PARTICIPATION, Subp. B. … However, testimony which is offered without benefit of oath or affirmation, or written testimony which is not subject to cross-examination, shall be given such weight as the administrative law judge deems appropriate.
Essentially, if it’s not under oath, it’s not a fact. Oh, and it wasn’t at the Blue Earth hearing, it was at the Jackson hearing, that was corrected. Now, let’s look further:
Was Aaron Backman sworn on oath? NO!
I asked Dr. Rakow whether he knew of Backman was under oath, and he did not know.
I asked Dr. Rakow whether he knew of Backman’s resume/C.V. and whether he had any expertise in transmission, and he did not know. He did not speak to him afterward, and did not ask him any questions regarding his statement.
I asked Dr. Rakow if he was present when any others offered statements regarding the Odell Wind Farm, and he did not know of other statements. He offered that it may have been the following day when he was not present.
Three statements regarding Odell Wind Farm from my notes, ALL THREE OF THEM ON MAY 13, AND TWO OF THEM IN JACKSON. From my rough notes, the transcript will be available soon:
May 13, 2014 7 p.m. Public Hearing in Jackson:
Aaron Backman – Economic Development Director, Windom. Supportive of Odell Wind Farm, dependent on this transmission line moving forward. The 161 kV option as suggested by Commerce will not be enough… MVP helps SW MN capitalize on valuable wind resource.
Just two commentors later, same venue, same hearing, we have a statement from a Gerinomo employee, developer/owner of the Odell Wind Farm project:
Jordan Burmeister – on behalf of Gerinomo and Odell Wind Farm. Planned and proposed projects that depend on this line being built. Others developed and secured PPAs, we support the 345 kV line, grew up in Lakefield, has seen economic development that wind projects bring. My comments are towards the need part of this.
And earlier that morning in Blue Earth, also on behalf of Gerinomo:
Justin Pickar – Also here not to discuss route, but need. On behalf of Gerinomo, 7650 Edinborough Way, Edina, Dir. of Devo. Projects that have been approved are dependent on the MVP projects. Trickle effect. Odell Windfarm, Jackson, Watowan, and Martin Counties (?), direct impact $50 million over 20 years, 10-12 employees.
Not only were these two Geronimo representatives present, but Gerinomo attorney Christie Brusven was present at the ITC Midwest DEIS Hearings and the Public Hearings. Here she is just after having posed for a photo in front of the tractors:
If this is a concern, is there some reason Odell Wind Project representatives did not raise this earlier? Is there some reason that ITC Midwest did not raise this in their application or voluminous responses to voluminous Information Requests?
Smells like money to me!
The existence of the Odell Wind Farm is not a “new fact,” nor are transmission considerations a “new fact.”
The Odell Wind Farm, MISO queue G826, got its spot in queue on July 16, 2007. Note that in some of these MISO models, G-519, the Excelsior Energy Mesaba Project is modeled, despite its having lost its place on the queue.
MISO Queue Public (scroll down to G826)
GI-DPP-2012-AUG-West_System Impact Study Report – Exhibit 535 Published March 29, 2013
Feasibility Study Report (look for G826 info) which shows this:
Impact Study Report (look for G826 info)
Transmission, interconnection, and curtailment were specifically addressed by Commerce in its review of the Odell PPA:
Going back to Dr. Rakow’s statement:
The applicant has the burden of proof, and “ITCM did not provide information…” What does it mean that there’s no information?
“Additional study and analysis would be required.” OK, Dr. Rakow, if that’s what you think, why aren’t you asking for it? Or on the other hand, why aren’t you saying that they had all the opportunity in the world to raise this if it were an issue, and they didn’t, and that’s their problem?
The statement regarding MISO assumptions could have been addressed with a look at the modeling, a question or two about the modeling, and entry of the studies into the record. The witness was there, but no one chose to do it.
And as to Dr. Rakow’s conclusion:
I asked Dr. Rakow, to verify that there is NO analysis of this in the record, and he verified, that correct, there was NO analysis in the record. I asked, where there is no analysis of this question in the record, does the record support a conclusion that the 161 kV rebuild will NOT be adequate to accommodate the Odell Wind Farm? And he had no choice to answer but that it did not show it was not adequate.
Again, I requested verification that there is NO analysis in the record, which he confirmed. And I verified that because there was no analysis in the record, he could not state either way, whether it would or would not be sufficient, and he confirmed that he could not state whether it would or would not be sufficient.
Dr. Rakow did NOT recommend that ITC Midwest’s Petition be granted.
And the issue remains that the Applicants have failed to meet their burden of proof regarding either their preferred project or their alternative.
The evidentiary hearing is over. 14 witnesses rammed through over maybe 3 hours.
I’ve just spent the last week dealing with transmission need and routing, both primary issues in eminent domain and condemnation for transmission lines (well, two days, but prep before, and the aftermath likgers…). Here’s what the Wall Street Journal has to say, that “abusers are making a comeback.” Abuse? Well, how about Xcel Energy challenging landowners’ exercise of “Buy the Farm” under Minn. Stat. 116E.12, Subd. 4? How about ITC Midwest, a private transmission-only company, wanting to build a transmission line and thinking they have power of eminent domain in Minnesota?
“Public service corporation” means a utility, as defined by section 216E.01, subdivision 10; gas, electric, telephone, or cable communications company; cooperative association; natural gas pipeline company; crude oil or petroleum products pipeline company; municipal utility; municipality when operating its municipally owned utilities; joint venture created pursuant to section 452.25 or 452.26; or municipal power or gas agency. Public service corporation also means a municipality or public corporation when operating an airport under chapter 360 or 473, a common carrier, a watershed district, or a drainage authority.
(b) The public benefits of economic development, including an increase in tax base, tax revenues, employment, or general economic health, do not by themselves constitute a public use or public purpose.
An important consideration is how it’s defined in 216E.01, Subd. 10:
“Utility” shall mean any entity engaged or intending to engage in this state in the generation, transmission, or distribution of electric energy including, but not limited to, a private investor-owned utility, cooperatively owned utility, and a public or municipally owned utility.
Check out what the Wall Street Journal has to say about abuse of eminent domain and use of this power of condemnation for private purposes:
By Dana Berliner
In Atlantic City, a state agency recently decided to bulldoze the home that Charlie Birnbaum’s parents bought 45 years ago and that he now uses as a piano studio and a base for his piano-tuning business, as well as renting out two suites. New Jersey’s Casino Reinvestment Development Authority wants to replace it with an unspecified private development around the Revel casino, which emerged from bankruptcy a year ago.
Mr. Birnbaum is represented by my organization, the Institute for Justice, in trying to save his business and his parents’ former home. He was served with condemnation papers on March 14, and the first hearing will be on May 20. After a lull in cases of eminent-domain abuse over the past several years, we are increasingly hearing complaints from home and business owners about government attempts to take property for private development projects.
If Mr. Birnbaum’s story sounds familiar, that’s because it is a repeat of what the Casino Reinvestment Development Authority tried in 1996. In that case the New Jersey authority tried to take the home of an elderly widow, Vera Coking, as well as Sabatini’s Italian Restaurant and a jewelry store, for a proposed limousine parking lot for Donald Trump’s Plaza Hotel and Casino.
The case garnered national attention and started a groundswell of interest in eminent-domain abuse. In 1998 a New Jersey district court denied the taking for the parking lot. Mrs. Coking stayed in her house for many years. Meanwhile, across the country home and business owners started resisting eminent domain. Courts began to take notice.
Then in 2005, the U.S. Supreme Court ruled by 5-to-4 in Kelo v. New London that a whole neighborhood in the Connecticut town could be condemned on mere economic speculation—on the hope that new homes and businesses would be built in the same location and that these would produce more property taxes and “economic development.”
The decision shocked the nation. In the years that followed, 44 states changed their laws to make eminent domain for private development more difficult. State courts also stepped into the gap—nine high courts, including New Jersey’s, placed state constitutional limits on eminent domain. Chastened by this wave of opposition, most cities and agencies became much more careful in their use of eminent domain.
Unfortunately, this breathing spell seems to be ending. This latest condemnation by the Casino Reinvestment Development Authority is part of a new wave of eminent-domain abuse, as cities and redevelopment agencies try to regain some of the power they lost:
• California actually abolished its redevelopment agencies in 2011. Now cities and powerful development interests have launched a ballot initiative to restore the redevelopment agencies and greatly expand their power to seize properties for private projects.
• Minnesota, Alabama and Illinois have added powers to state and municipal agencies to condemn for such projects as sports stadiums, industrial developments and business-district economic development.
• The 22-acre Atlantic Yards project in Brooklyn, N.Y., was supposed to include several office towers, thousands of housing units, retail, parks and other amenities to accompany the Barclays Center sports arena. But construction plans change, and the project will now include far less than originally promised.
The condemnation of Charlie Birnbaum’s building in Atlantic City is a classic example of eminent-domain abuse. The agency has no plan for the property. Promises of economic growth are made with no plausible substantiation of how it will happen. Mr. Birnbaum’s house is at the very edge of the area being taken and could easily be left alone. A judicial decision should come this year at the trial court, and the case is almost certain to be appealed.
The last outbreak of eminent-domain abuses spurred a grass-roots movement that seemed to chasten land-grabbing bureaucrats. With luck, these latest manifestations of government arrogance may prompt more pushback by home and business owners and result in greater private-property protections.
Ms. Berliner is the litigation director for the Institute for Justice, which represents Charlie Birnbaum, and represented the homeowners in both the Atlantic City eminent domain battle and the Kelo U.S. Supreme Court case.
From Deb Severson:
It is worth noting that Matt Johnson’s extremely strong and well done editorial in the Vernon Broadcaster hit many of the same themes:
In Cooperation, Deb
The Wisconsin Public Service Commission (PSC) has just cause to make history in turning down the application for the Badger Coulee line.Over the next 180 to 360 days, the PSC will consider the fate of the Badger Coulee line, which is being pitched by the American Transmission Co. and Xcel Energy. The Badger Coulee Line is a 345-kilovolt electrical transmission line from Madison to La Crosse.It is part of a spider web of other similar lines. It is not to benefit those who live near it. It is a mechanism by which utilities can “trade” electricity.
Why create enormous electrical transmission infrastructure at a time when less electricity is being used and the overwhelming trend is to create renewable local energy sources?
Toss out whatever cliché you wish – the 800-pound gorilla in the corner, give it the duck test, identify the elephant in the room – at the end of the day, an unnecessary $550 million power line is still an unnecessary $550 million power line.
Examining the documents leading up to this moment is a nightmare of tedium. You can find all of the formal documents on the PSC’s website http://psc.wi.gov under the case No. “5-CE-142.” Dating back to 2010 there are more than 350 documents, diagrams, attachments, figures, etc., on this list. None of them reasonably state why the line is needed.
There are cheerleaders for the Badger Coulee line — those who would profit from its construction. This includes the restaurant association and numerous trade unions for whom its construction would provide jobs. We can all agree that restaurants need to serve food and people in the trades need jobs. But they don’t need to get them by building an enormous, unnecessary electrical line.
More importantly, electrical rate payers do not deserve to pay 40 years’ worth of rate hikes for an unnecessary transmission line.
We live in a world where electrical rate payers are buying out solar farms — such as that offered recently at Vernon Electric in Westby. People understand and agree that they want local, renewable, clean energy sources. The Badger Coulee Line is a $550 million 20th century square peg that is being jammed into a 21st century vaporizing round hole.
A vote by the PSC to approve the Badger Coulee Line should be viewed historically for what it will be, an enormous money grab that ignores reality and the wishes of state residents, who have overwhelmingly asked for alternatives to this project.
Public Hearings on the ITC Midwest MN/IA transmission project begin tomorrow:
Moments ago, I filed a Motion to Extend the Public Comment Period to allow public comment on the adequacy of the Final Environmental Impact Statement.
The FEIS is not due to be released until July 11, 2014. That FEIS release is about two months after the public hearings and evidentiary hearing, and about a month and a half after the public comment period closes (May 30, 2014. NOT OK!
How on earth would the Commission have any idea whether the FEIS is adequate if the people affected by this project and who know the lay of the land are not allowed to comment on it? How will they know if Commerce has addressed all the things that need to be addressed? DOH!
So here is what I sent a couple days ago:
Judge La Fave and Parties –
Attached please find eFiled correspondence regarding the release of the FEIS and Public Comment period regarding adequacy of the FEIS, and briefing schedule with FEIS release in mind. If the record closes on May 30, the July 11 FEIS won’t be in the record! Environmental review is not addressed in the scheduling order, and we request time for the public and parties to address the adequacy of the FEIS.
Carol A. Overland
for CETF and No CapX 2020
And the correspondence:
Today, Asst. A.G. Linda Jensen, for Commerce, sent the following:
Dear Judge LaFave,
The Department of Commerce, Energy Environmental Review and Analysis (EERA) is in receipt of the below email and attached “FEIS Comment Period” letter of Ms. Overland regarding Citizen Energy Task Forces’ and No CapX 2020’s May 8, 2014, request that the Prehearing Order be amended and the comment period for the public hearing be extended to July 18, 2014, a date that is one week after the scheduled release of the final EIS. The EERA provides the following information to assist Your Honor in addressing this request.
Typically, prehearing orders do not include milestones in the environmental review process as order points, as the environmental review process falls under the purview of the Department of Commerce and the Department sets the dates for these review milestones. Orders generally do include environmental review milestones as targets, for informational and planning purposes only. Examples of prehearing orders from five recent transmission line projects are attached.
With respect to comments on the FEIS, Minnesota Rule 1405.1400 requires that “record of the hearing shall be closed at a date to be set by the administrative law judge…. Written comment will be accepted if postmarked no later than the date set by the administrative law judge. However, the record shall remain open beyond that date for the sole purpose of receiving board responses to relevant comments received on the environmental impact assessment.”
Although this language is somewhat outdated in that it refers to the “board” (EQB) and an environmental impact assessment (instead of an environmental impact statemen, (EIS)), the rule requires that the record shall close on a date set by the ALJ, except remaining open to receive the responses to the draft EIS, i.e., the final EIS.
Of the five attached prehearing orders, four of them keep the record open solely for receipt of the FEIS, i.e., there is no public comment period on the FEIS. In these instances, comment on the FEIS was allowed during briefing. Other projects have also used this approach, e.g., Hiawatha transmission line project, Pleasant Valley to Byron transmission line project. The fifth prehearing order– for the Brookings County to Hampton project — does include a public comment period on the FEIS.
The requirements of MEPA are incorporated into the Power Plant Siting Act (216E) and its associated routing (7850) and hearing (1405) rules. The hearing rules specify how the environmental review accompanies the project through the hearing process and precedes a final decision on the project.
I hope this is of assistance. Please let Ms. Olson or I know if further information may be helpful.
LindaLinda S. Jensen Assistant Minnesota Attorney General 445 Minnesota Street Suite 1800 St. Paul, MN 55101 Phone: 651-757-1472
And the attachments:
After receiving this, I fired off an email, and then filed the Motion:
Typically, the environmental review milestones are incorporated into the schedule in scheduling orders. Further, adequacy of the EIS is at issue. Minn. R. 7850.2500, Subp. 10.
In the Brookings case, No CapX and U-CAN requested that the deadline that had been established for public comments be extended to incorporate filing of the FEIS and a one week comment period, and the ALJ did order that extension.
No CapX 2020 and U-CAN made that same request in the CapX Hampton-La Crosse docket. Attached please find copy of the Order Denying Motion in the CapX Hampton to La Crosse routing docket, where the ALJ stated that the 4100 chapter requirement of a Comment period on the FEIS “is simply not applicable here.”
This lack of FEIS comment opportunity was problematic in this case. Because we did not have the opportunity to comment on it, the FEIS was not closely scrutinized. However, as we learned the hard way, that EIS contained information that was not correct, and both areas where there was incorrect were very contentious areas (the two dam crossings). At the Zumbro Dam, where there was no transmission line and instead a forest, it was stated that there WAS a transmission line, and the ALJ recommended that route based on corridor sharing. Only a last minute oral clarification during PUC discussion prevented that error from resulting in a transmission route through a forest rather than in a pre-existing corridor. At the Byllesby Dam, there was no mention of the existing three transmission line corridor, the error was not acknowledged by the Commission, and the route chosen was instead on a greenfield route through that area. This is the transmission corridor that was not presented in the EIS:
While the 4400 Chapter of Minn. Rules does not apply, the statute and rules do require that the Commission make a determination regarding the adequacy of the EIS. Under Minn. R. 7850.2500, the Commission must make several findings regarding adequacy of the EIS:
7859.2500, Subp. 10.
The Public Utilities Commission shall determine the adequacy of the final environmental impact statement. The commission shall not decide the adequacy for at least ten days after the availability of the final environmental impact statement is announced in the EQB Monitor. The final environmental impact statement is adequate if it:
A. addresses the issues and alternatives raised in scoping to a reasonable extent considering the availability of information and the time limitations for considering the permit application;
B. provides responses to the timely substantive comments received during the draft environmental impact statement review process; and
If the commission finds that the environmental impact statement is not adequate, the commission shall direct the staff to respond to the deficiencies and resubmit the revised environmental impact statement to the commission as soon as possible.The Commission was in a rather difficult spot because of the FEIS problems in the CapX 2020 Hampton – La Crosse case, and almost made a routing decision on demonstrably incorrect information.Extension of the public comment period also furthers public participation:
216E.08 PUBLIC PARTICIPATION.
Subd. 2.Other public participation.
The commission shall adopt broad spectrum citizen participation as a principal of operation. The form of public participation shall not be limited to public hearings and advisory task forces and shall be consistent with the commission’s rules and guidelines as provided for in section 216E.16.
Based on the premise of the Power Plant Siting Act of encouraging and furthering public participation and the Commission’s “principal of operation,” CETF and No CapX 2020 request a short comment period after the filing of the FEIS to address adequacy. The people are the ones on the ground who know if important issues are not adequately addressed or are being given short shrift, and the public participation can prevent material errors.
Carol A. Overland
for CETF and No CapX2020
DEIS Comments FILED on the ITC Midwest MN/IA Transmission Project!!! Please feel free to use for ideas for your comments — license to steal, borrow, copy. Remember Comments are due by 4:30 TODAY!
fax: 651.539.0109Ray Kirsch, Environmental Review Manager Minnesota Department of Commerce 85 – 7th Place East, Suite 500 St. Paul, MN 55101-2198
Here are our comments, hot off the press and just eFiled, plus exhibits:
RTO operational benefits are largely associated with the improved ability to displace gas generation with coal generation, more efficient use of coal generation, and better use of import potential.
Comments are due on the Draft Environmental Impact Statement on May 9 — that’s TOMORROW! More on this below on this post.
fax: 651.539.0109Ray Kirsch, Environmental Review Manager Minnesota Department of Commerce 85 – 7th Place East, Suite 500 St. Paul, MN 55101-2198
Now, about the Environmental Review and scheduling…
As I work on the DEIS comments due tomorrow on the ITC Midwest MN/IA 345 kV Transmission Project, I realized that environmental review is not incorporated into the scheduling order:
That’s most unusual… I had to call Ray Kirsch to find out when the Final EIS is going to be released. That’s July 11, 2014. It’s not on the Scheduling Order. So what? Well, think about it… what that means is that the public hearings are May 13 & 14th, the Evidentiary Hearings is May 19 – 23rd, the record closes on May 30, and so all the hearings are over and the record is closed when the FEIS is released! It also means that the Public Comment period, which closes also on May 30, 2014, doesn’t give the public any way to comment on adequacy of the FEIS. And parties’ Initial Briefs are due on July 11, 2014, so we can’t comment on it in the Initial Briefs either. No, this is not OK.
So I fired off a letter, and am ready to file a Motion if need be:
Again, send DEIS comments to:
fax: 651.539.0109Ray Kirsch, Environmental Review Manager Minnesota Department of Commerce 85 – 7th Place East, Suite 500
St. Paul, MN 55101-2198
Some issues that come to mind:
In the meantime, here’s the DEIS for review:
image: detail of installation by Bronwyn Lace