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.

james.lafave@state.mn.us and routecomments.oah@state.mn.us

James LaFave

Administrative Law Judge

Office of Administrative Hearings

ITC MN/IA Transmission, OAH Docket: 60-2500-30782

PO Box 64620
St. Paul, MN 55164-0620

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:

CETF NoCapX_Motion FEIS_Amended

So far there are is only two one Repliesy, 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):

ITC Reply to Motion_20145-99844-01

Commerce Reply to Motion_20145-99801-01

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:

Subp. 2.  Written comments.

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:

james.lafave@state.mn.us and routecomments.oah@state.mn.us

James LaFave

Administrative Law Judge

Office of Administrative Hearings

ITC MN/IA Transmission, OAH Docket: 60-2500-30782

PO Box 64620

St. Paul, MN 55164-0620