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).

Rakow Statement May 19 2014

So let’s look at this statement.

New facts?  Gleaned from testimony at the public hearing?

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:

All evidentiary testimony presented to prove or disprove a fact at issue shall be under oath or affirmation.

Here are a few citations regarding witnesses, oath/affirmation, and facts:

1400.7200 WITNESSES.

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:

Commerce Comments_Odell Wind Project 13-603_20139-91117-04

For example:

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?

Minn. R. 1405.1700, Subp. 7. Burden of proof.

Any route or site proposer must prove the facts at issue by a preponderance of the evidence, unless the substantive law provides a different burden.

“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.

Bottom line?

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.