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OAH 8-2500-21746-2 MPUC No. E999/M-10-222 |
STATE OF
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE
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In the Matter of the 2010 Annual Hearing on the Power Plant Siting and Transmission Line Routing Program |
REPORT TO THE COMMISSION |
On December 7, 2010, the Minnesota
Public Utilities Commission requested that the Office of Administrative
Hearings conduct on its behalf the 2010 Annual Hearing on the Power Plant
Siting Act Programs, held pursuant to Minn. Stat. § 216E.07 (2008).[1] Administrative Law Judge Eric L. Lipman conducted
the public hearing commencing at 10:00 a.m. on December 28, 2010, at the
Following a 34-day public comment period, the hearing record closed at 4:30 p.m. on February 1, 2011.[2]
The Annual Hearing has two key purposes. It is intended to advise the public of matters relating to the siting of large electric power generating plants and routing of high voltage transmission lines. Additionally, the annual hearing affords interested persons an opportunity to be heard regarding the Commission’s activities, duties or policies pursuant to the Power Plant Siting Act.[3]
Notice of the Annual Hearing
On December 7, 2010, the Commission served notice of the annual hearing, along with a tentative agenda, to those persons who requested notice.[5] The notice was published in the EQB Monitor on December 13, 2010.[6] Further, notice of the hearing was posted on the Commission’s web calendar throughout notice and public comment periods.[7]
Approximately a dozen members of the public (not including staff of the Office of Energy Security or staff of the Commission) attended the hearing.
Introductions from Commission and OES Staff
Bob Cupit of the Minnesota Public Utilities Commission staff introduced himself and offered the exhibits documenting the Commission’s compliance with the applicable notice requirements. He explained that the Power Plant Siting Act is administered jointly by the Commission and the Minnesota Office of Energy Security (OES). Mr. Cupit described the OES Energy Facility Permitting unit, whose staff members are responsible for managing the development of siting and routing decision records, conducting environmental reviews, and making recommendations to the Commission. He also described the roles of the Commission and its staff.
Deborah Pile of the OES introduced herself and described the work of the ten-member team of project managers, who provide the environmental review associated with each project. Ms. Pile described the unit’s maintenance of lists of persons who desire to receive notices on all permitting processes, as well as lists of persons who wish to participate in specific proceedings.
Next, Ms. Pile summarized the work completed by the OES Energy Facility Permitting Staff in 2010. The OES issued 19 environmental documents in 2010. These materials related to one power plant, one pipeline, eight transmission lines and nine wind farms. Ms. Pile also noted that applications for six wind farms and seven transmission lines are currently under review.[8]
Summary of Public Hearing Testimony
A.
Remarks
of Carol Overland
Carol Overland, an attorney at law,
testified at the hearing and offered eight exhibits into the hearing record.[9] In
her remarks, she outlined a number of critiques of the Power Plant Siting Act
program. In the main, she regards the
program as poorly structured, overly solicitous of utility companies and
insufficiently funded. In her view,
these deficits combine to deprive the public of important information and lead
the Commission into error.
Ms. Overland believes that the membership of
local advisory task forces is unreasonably limited and includes too few citizen
members. She argued that the task forces
are an important feature of the fact-finding process and should be chartered as
a matter of course. She likewise suggested
that the task force process provide better opportunities for public comment.
Ms. Overland recommended a broader series of
publicly-funded supports for the development of the record in utility
cases. She urged the establishment of a Department
of Public Advocate, use of public funds to defray the fees of attorneys and
experts retained by intervenors, disclosure of hearing transcripts to the
public without charge, and improvements to the process of notifying landowners
of changes to an Applicant’s proposed routing.
She likewise suggested that the number and range of experts employed by
the Energy Facility Permitting Unit be expanded – particularly in the field of
electrical engineering.
Ms. Overland is critical of the narrow
breadth and detail of the environmental review process. She urged closer cooperation between the
state and federal agencies in developing Environmental Impact Statements and
recommended that the Commission be prohibited from selecting routes that have
not been subject to environmental review.
She expressed frustration that, in many cases, a Final Environmental
Impact Statement is issued after the adjournment of the evidentiary hearing.
Asserting that many local
governments lack the resources to conduct a proper review of Community Based
Energy Development (C-BED) projects, and therefore are not undertaking such
processes, Ms. Overland expressed skepticism that smaller projects receive a
meaningful review. Ms. Overland urged statutory
revisions that would clarify the process for challenging determinations of
C-BED eligibility.
Ms. Overland hopes for
more agency participation in the hearing process; particularly from the
Minnesota Department of Natural Resources (DNR) and the Minnesota Department of
Transportation (MnDOT). She likewise
asserted that the agency position on the Applicant’s proposals should be
disclosed earlier in permitting proceedings.
Ms. Overland suggested
that the OES website should be revamped so as to make clear the difference
between postings there and the broader range of filings in the Commission’s
E-Docket system.
Regarding the
administrative process, Ms. Overland made a number of recommendations. She suggested that intervenors should not be
required to pre-file testimony in order to retain their status as parties to
contested cases. She recommended that
persons participating in the public hearing process be sworn and provide their
testimony under oath. She urged
clarifications to the permitting factors found in statutes so as to give greater
guidance to relative weighting of, and relationship among, statutory
factors. Finally, she argued that
Commission members should be more closely vetted for disqualifying conflicts of
interest.[10]
By way of a letter dated
February 1, 2011, Ms. Overland submitted as a written comment in this proceeding
what purported to be a Petition for the Adoption of a Rule under Minn. Stat. §
14.09 and Minn. R. 1400.2500. While the
blending of that specialized request for relief, with the public comments in
this docket, was as unorthodox as it was unforeseen, the writing does have the
benefit of reflecting Ms. Overland’s draftsmanship of her proposals for
reform. And so, without reaching either the
question of whether the inclusion of the “Petition” as a written comment in
this docket satisfies the service requirements of Minn. R. 1400.2500, or how
the “Petition” might operate as to administrative rules that the Commission did
not promulgate in the first instance, it is commended to the Commission’s
review.
B.
Remarks
of Jamie Schrenzel
Jamie Schrenzel, of the Minnesota Department
of Natural Resources, began her remarks by reviewing the DNR’s role in siting
and routing proceedings and some of the Department’s work in this area during
2010.
Among the positive developments noted by Ms.
Schrenzel are an earlier development of environmental mitigation plans and
implementation of more robust permitting conditions.
Ms. Schrenzel had three recommendations for
improvements. She noted that OES, the Commission
and the
Second, Ms. Schrenzel urged the development
of methods that would more sharply focus the DNR’s assessment resources. As Ms. Schrenzel explained, in many transmission
line cases, the environmental review documents examine a wide and lengthy route
– a large terrain that potentially allows planning and micrositing within the
route. Yet, because more parcels of land
are included within this “flexible” approach, precisely determining the impact
of the routing on any one parcel is made more difficult. She suggested better coordination between the
Applicant, DNR and OES on the substance of the Department’s review. Alternatively, in those cases where the
number of environmentally-sensitive areas along a route can be narrowed, DNR
can better focus its assessment resources and provide a more detailed review of
these impacts.
Finally, Ms. Schrenzel urged standardization
when possible in the development of mitigation plans. Common, best practice features in mitigation
plans, argues Schrenzel, would benefit both the applicant and agency
reviewers. It would provide greater
certainty and facilitate the receipt of technical input at earlier stages in
the process.[11]
C.
Remarks
of Paul Reese
Paul Reese, a member of the Coalition for
Sensible Siting, urged the Commission to appoint an advisory task force in The
Matter of the Commission Investigation into Large Wind Energy Conversion
Systems Permit Conditions on Setbacks and the Minnesota Department of Health
Environmental Health Division's White Paper on Public Health Impacts of Wind Turbines,
MPUC Docket No. E-999/CI-09-845. While
expressing gratitude that this docket remains open, he worried that the
Commission process will still not be able to access the most current research. Additionally, Mr. Reese expressed concern
that independent power providers will be able to use the power of eminent
domain in support of their projects.
Lastly, he urged revising the exemption found in Minn. R. 7850.1400, to
make the “prime farmland exclusion” of Minn. R. 7850.4400, subpart 4,
applicable to small wind projects.[12]
D.
Remarks
of Kia Hackman
Kia Hackman, a homeowner
along the proposed
E.
Remarks
of Suzanne Rohlfing
Suzanne Rohlfing, a
member of the North Route Group and its representative on the Citizens Advisory
Task Force for this routing, offered her reflections on the Task Force
process. While complimentary of the work
and management of the Task Force, Ms. Rohlfing expressed concern over the fact
that there were no citizen-appointees to this Task Force and that many of the governmental
entities invited to participate in the process did not do so. She likewise noted that benefits of the Task
Force process were cramped by constraints outside of their control –
specifically, real limits on the time within which the Task Force could render
feedback, the availability of inputs from the agency and the value of the
agency inputs that the Task Force did receive.[14]
F.
Remarks
of Monica Nigon
Monica Nigon, a homeowner
adjacent to the proposed
G.
Remarks
of Alan Muller
Alan Muller, a resident
of Red Wing, Minnesota, asserted that the OAH, OES, and the Commission are too
deferential to applicants and are much less deferential to “the public interest
in general or individual parties who have a concern.” In his view, these agencies are “captured by
the interests they were supposed to be regulating ….” In particular, he expressed dismay that
Commission members who have participated in the deliberations of the Upper
Midwest Transmission Development Initiative are not obliged to later recuse
themselves from decision-making in particular transmission line matters.
Mr. Muller recommended a
number of reforms to improve the transparency of the permitting process,
including: (1) notifying the general
public of the pendency of proceedings earlier in the process – particularly as
to the determination of whether a particular energy facility is needed; (2)
improving the disclosures that are made to members of the public, so as to
better communicate the implications of the matters being decided; (3) upgrading
the roles of the DNR and the Minnesota Pollution Control Agency in the
permitting process, on the grounds that they are better able to assess the
public interest than the Department of Commerce; and (4) obliging documentation
and disclosure of inter-agency communications regarding projects that are under
review.[16]
Summary of Written
Public Comments
A total of eighty-six written comments were submitted into the record.
A.
Assessments
of the Siting Program from
Seventy-six of the written comments were submitted by persons who had earlier participated in the Commission proceedings In the Matter of the Application for a Certificate of Need and Large Wind Energy System Site Permit for the 78 Megawatt Goodhue Wind Project in Goodhue County, OAH 8-2500-21395-2, MPUC Docket Nos. IP-6701/ CN-09-1186 and WS-08-1233.
As the Commission is aware, AWA
Goodhue, LLC, proposes to site approximately 50 wind turbines within a 32,700
acre project area west of
Among the key critiques that these commentators would have the Commission address and resolve are: (1) the siting process is overly complex, insular and opaque – and seemingly favors the interests of energy insiders over the interests of the general public;[18] (2) there is a lack of uniform and accessible standards for the setbacks of wind turbines from adjacent structures and uses;[19] (3) there are tensions between the mandate to obtain larger shares of electric power from renewable sources of energy, and the obligation under Minn. Stat. 216E.02 to “minimize [the] adverse human and environmental impact[s]” of those energy projects;[20] (4) there are a number of barriers to the public’s receipt of timely and accurate information on the siting of energy facilities;[21] (5) Commission and OES staff do not present themselves to the public as neutrals;[22] and (6) the standards for Community Based Energy Developments are too permissive and under-serve the affected public.[23]
With this feedback, the commentators from Goodhue County urge the Commission to revise its process so that it is clear that, in Commission decision-making, the siting preferences of individuals and communities are weighted as much as (or more than) the preferences of project applicants.
B.
Written
Comments of Paula Goodman Maccabee
Paula Goodman Maccabee, an attorney in
private practice, offered a number of suggestions for revising Commission
processes. In the main, she urged a
series of procedural changes that would make it easier for members of the
public to access information on pending applications and to detail the
environmental impacts of particular siting and routing decisions.
Specifically, Ms.
Maccabee urges the Commission to: (1) blend the operations of the Energy
Facility Permitting staff of the Department of Commerce with those of the Commission,
so the Commission can better oversee and manage the environmental review of
permit applications; (2) bolster the capabilities and numbers of Commission
staff so as to better assess the contents of permit applications; (3) revise
Minn. R. 7849.0120 so as to encourage the development and selection of facility
alternatives that have fewer environmental impacts; (4) consolidate Certificate
of Need and routing proceedings to improve public participation and the
accuracy of data underlying decision-making; (5) upgrade the standards on completeness
of permit applications so as to oblige an early filing of siting, routing and mitigation materials; (6)
establish a single, unitary record from the date of scoping through the
Commission’s final decision; (7) revise Commission procedures so as to achieve
greater consolidation of public hearings and contested case hearings; (8) provide
resources for intervenor participation in certain dockets; (9) increase staff
resources for oversight of applicant compliance with Commission orders; and (10)
revise the resource planning process so as to emphasize goals other than
meeting peak energy demands.[24]
C.
Written
Comments of the
The Minnesota
Transmission Owners is an association of 21 firms that own or operate large
energy generating facilities and high voltage transmission lines within the
state of
Specifically, it urges the Commission to: (1) revise Minn. R. 7850.2000 so as to expand the timelines for review of a site permit or route permit; (2) consolidate the various notices (in Chapters 7829 and 7850) for a certificate of need for high voltage transmission lines, into a single notice procedure; (3) repeal the requirement in Minn. R. 7850.1900 that every applicant must designate a preferred alternative among routing and siting options; (4) clarify which kind of changes to a project’s design oblige a subsequent set of notices to the public; (5) streamline the line certification process so as to make it a viable, shorter and less-costly alternative to the certificate of need process – particularly when the Commission acts upon applications for low voltage and load serving transmission lines; and (6) make such process revisions so as to ensure that more applications are processed within the six-month and one-year timeframes set forth in Minn. Stat. §§ 216E.03 and 216E.04.
D.
Written
Comments of the Bemidji-Grand Rapids Project Owners
The five utility companies that jointly applied for permits relating to the Bemidji-Grand Rapids 230 kV transmission line submitted comments in support of the reforms urged by the Minnesota Transmission Owners and urged the Commission to harmonize its procedures with the requirements of the National Environmental Protection Act. Specifically the BGR owners would favor more opportunities to undertake a single, consolidated environmental review that was responsive to the inquiries of state and federal reviewing agencies.
Dated: March 4, 2010
_s/Eric
L. Lipman_______________________
ERIC
L. LIPMAN
Administrative
Law Judge
Reported: Transcribed (Shaddix & Associates).
[1] Ex. 1.
[2] Public Hearing Transcript, at 88.
[3] See
[4] See Minn. Stat. § 216E.07; Minn. R. 7850.5400, subp. 2 (2007).
[5] Ex. 1.
[6] Ex. 3.
[8] Exs. 7 through 14; see also, Written Comments (E-Docket No. 20112-59140-01).
[9] Exs. 4, 5 and 6.
[10] Tr.
at 19-42, 73-79; Exs. 7-14.
[11] Tr.
at 42-53; Ex. 15.
[12] Tr.
at 53-56; see also In the Matter of the Application by Xcel
Energy for a Route Permit for the Hampton-Rochester-La Crosse 345-kV
Transmission Line Project, OAH Docket No. 3-2500-21181-2, MPUC Docket No.
E002/TL-09-1448.
[13] Tr.
at 56-60.
[14] Tr.
at 60-69. Drawing upon her experience as
a member of the Citizens Advisory Task Force, Ms. Rohlfling also filed written
comments urging improvements to the timelines, resources and notification
processes for Task Force activities.
[15] Tr.
at 69-72; see In the Matter of the Application of Pleasant Valley Wind, LLC
for a Large Wind Energy Conversion System (LWECS) Site Permit for the 300 MW
Pleasant Valley Wind Project in Dodge and Mower Counties, MPUC Docket No.
IP-6828/WS-09-1197.
[16] Tr.
at 79-84.
[17] See
generally, In the Matter of the Application of Goodhue Wind LLC for a
Certificate of Need for a 78 MW Wind Project and Associated Facilities in
Goodhue County, MPUC Docket No. CN-09-1186 (December 30, 2009) (E-Docket
No. 200912-45523-01).
[18] See, e.g., Comments of Wade Nygaard;
Comments of Robin Nygaard; Comments of Erin Logan; Comments of Ann Buck;
Comments of Scott Ralideh; and Comments of Jason Screffler.
[19] See, e.g., Comments of Barbara Stussy;
Comments of Eli Tri; and Comments of Andy and Katie Ryan.
[20] See, e.g., Comments of Barbara Stussy;
Comments of Summer Groth; and Comments of Thomas Gale.
[21] See, e.g., Comments of Ann Buck and
Comments of Brent Jacobson.
[22] See, e.g., Comments of Bill O’Reilly;
Comments of Ann Buck; Comments of Chris Buck; Comments of Quin Ordeson;
Comments of Steve Groth; Comments of Lance Groth; Comments of Mark Hinrichs;
Comments of Devyn Summers; Comments of Bruce Tren; Comments of Jason Screffler;
Comments of Dave Hart; Comments of Christine Goddard; Comments of Andy and
Katie Ryan.
[23] See, e.g., Comments of Ann Buck and
Comments of Donald Hinz.
[24] See, e.g., Comments of Paula Goodman
Maccabee.