Motion to Extend Public Comment Period

Filed under:ITC MN & IA 345 kV — posted by admin on May 12, 2014 @ 6:17 pm

Public Hearings on the ITC Midwest MN/IA transmission project begin tomorrow:

Untitled

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.

CETF NoCapX_Motion FEIS

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:

FEIS Comment Period

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.

Linda

Linda S. Jensen
Assistant Minnesota Attorney General
445 Minnesota Street Suite 1800
St. Paul, MN 55101
Phone: 651-757-1472

And the attachments:

Brookings County to Hampton Second Prehearing Order, 9.11.09

Fargo to St. Cloud Prehearing Order, 5.25.10

Hampton-Rochester-LaCrosse Prehearing Order, 9.1.10

Hollydale Second Prehearing Order, 7.5.12

Monticello to St. Cloud Prehearing Order, 9.29.09

After receiving this, I fired off an email, and then filed the Motion:

All –

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:

harryavexmsn
In requesting that the Public Comment period be extended until after the FEIS is filed, CETF and U-CAN are hoping to avoid problems such as these.

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.

Adequacy determination.

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

C. was prepared in compliance with the procedures in parts 7850.1000 to 7850.5600.

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



image: detail of installation by Bronwyn Lace