10-2901-12620-2

STATE OF MINNESOTA

OFFICE OF ADMINISTRATIVE HEARINGS

FOR THE MINNESOTA ENVIRONMENTAL QUALITY BOARD

 

In the Matter of The Exemption Application By Minnesota Power For A 345/230 kV High Voltage Transmission Line Known As The Arrowhead Project MEQB Docket No. MP-HVTL-EA-1-99

ORDER ON MOTIONS TO DISMISS AND COMPEL DISCOVERY AND ORDER ON REQUESTS TO TERMINATE PARTY STATUS AND FOR EXEMPTION FROM THE WITNESS ATTENDANCE REQUIREMENT

          A Motion to Compel Discovery in the above-entitled matter was filed by Minnesota Power on June 30, 2000.  Replies were filed by a number of intervenors.  North American Water Office (NAWO) filed a reply and a Motion to Dismiss Minnesota Power's application for exemption.  The last filing on these motions was received on July 20, 2000.  In addition, Lake Superior Greens requested permission to end their status as a formal party.  Instead they seek to participate in this proceeding through the processes available to any member of the public. 

          All parties on the attached Service List had the opportunity to participate by written submission in the motions filed.

Based upon the submissions of the parties and for the reasons set forth in the accompanying Memorandum, the Administrative Law Judge makes the following:

ORDER

1.     Minnesota Power's Motion for an Order compelling full and complete answers to its discovery requests is DENIED.

2.     NAWO's Motion to Dismiss the Application for Exemption is DENIED.

3.     The request by Lake Superior Greens to have their status as intervenor in this matter terminated is GRANTED.

 

Dated this

   th

day of

July,

2000.

 

 

                                                                

 

KENNETH A. NICKOLAI

Administrative Law Judge

 

MEMORANDUM

Minnesota Power has moved to compel answers to seven questions posed to each of the intervenors.  The seven questions are:

1.       Provide copies of all documents you intend to submit in evidence at the hearing of this matter.

2.       Provide copies of all documents relating in any way to the subject of this Docket that you have received from any other person or organization, whether such documents were provided in response to a discovery request or on some other basis.

3.       Provide the names and addresses of all persons you intend to call as a witness at the hearing of this matter and for each such person identified, provide a summary of the topics of such testimony and the facts supporting any opinions to be given and any documents relied upon in forming any such opinions.

4.       Identify and describe all impacts from construction or operation of the facility on human health and the environment which you believe are experienced in Minnesota. Provide copies of all documents relating to your response.

5.       For each impact experienced in Minnesota identified in your response to Question No. 4, describe with particularity how you believe the impact in Minnesota is directly related to the proposed facility. Provide copies of all documents relating to your response.

6.       Provide the names and addresses of any member of your organization who (i) owns real property crossed by or adjacent to the proposed route in Minnesota, (ii) owns real property in Minnesota, stating the address of such property, or (iii) resides in Minnesota.

7.       State the total number of members in your organization, their names, and city of residence.

Clean Water Action Alliance (CWAA) responded to Minnesota Power's facts by providing a list of four documents, noting that CWAA had no documents falling under question 2, and noting that it did not intend to call any witnesses.[1]  NAWO, Save Our Unique Lands (SOUL), and World Organization for Landowners Freedom (WOLF) objected to the questions as premature, as they would necessarily encompass the direct testimony required to be filed no sooner than August 4, 2000.[2]  Similarly, question 3 was objected to by WOLF and SOUL as premature insofar as witness lists are not required to be exchanged prior to August 21, 2000.

SOUL and WOLF objected to question 2 as "overly broad and vague."[3]  WOLF also noted that much of the material in its possession consisted of Minnesota Power's responses to WOLF's discovery requests or publicly available documents and therefore question 2 was unduly burdensome.

Question 4 requests identification and description of impacts on human health and the environment "from construction or operation of the facility" that the intervenor believes are experienced in Minnesota.  The question asks for all documents relating to the intervenor's response.  WOLF objected to the question as vague, since the question did not indicate whether impacts arising out of the Minnesota portion of the Arrowhead project or the entire scope of that project were requested.  Minnesota Power asserted that the question is clear, citing the Environmental Quality Board's DATE Order and Minnesota Power's application.[4]

Minnesota Power asserts that its questions are "basic and garden variety" and intended to prevent "trial by ambush."[5]  This characterization does not account for the detailed prehearing order issued in this matter.  There will be no trial by ambush.  The pre-hearing order requires direct and rebuttal testimony be filed on a date certain prior to the live testimony.  This date was established to allow the parties adequate time to prepare for cross-examination. 

Questions 6 and 7 inquire as to the residence, and property ownership of members and the combined membership of several of the intervenor groups.  NAWO responded to the membership question.  WOLF and SOUL objected to the questions asserting that the information sought was neither relevant nor reasonably calculated to lead to relevant evidence.  Minnesota Power asserted that the scope of this proceeding "raises a question as to proper parties to make claims for alleged impacts."[6]  Additionally, Minnesota Power asserts that the information is important to assess the credibility of organizations.[7]

Intervenor status was originally granted by Order of Administrative Law Judge Phyllis Reha on January 20, 2000.  A further opportunity to assess intervenor status was afforded after the Environmental Quality Board's Order of May 3, 2000.  The issue of who is entitled to intervention is now decided.  As for credibility, the record upon which the recommendation will be made in this matter will be based on the testimony and credibility of individual witnesses who appear during the hearing.   The Administrative Law Judge is not convinced that discovery questions inquiring into the membership of intervenors is relevant or calculated to lead to admissible evidence.

In addition, the rules applicable to this proceeding do not contemplate broad prehearing discovery.  Minn. Rule 1405.0300 states in part, "The procedures contained herein shall govern the conduct of all hearings conducted for the Environmental Quality Board involving the siting of large electric power generating plants, …., and to the site and route exemption processes …"   While one of the duties of the Administrative Law Judge is to "grant or deny motions for discovery…"[8], the broad discovery provisions of 1400.6700 are not found in the language of Minn. Rules 1405.0200 et. seq.  Instead, the rules applicable to these proceedings contain specific provisions concerning depositions to preserve testimony, subpoenas and requiring the use of direct testimony written and submitted in advance of the hearing.  If Minnesota Power's motion to compel discovery is treated as a request for a subpoena for the production of documents, denial of the request is appropriate because Minnesota Power has not shown the potential relevance of documents that are not already subject to the pre-trial order.  A different result might be obtained if specific questions regarding particular issues were sought, but the broad scope of Minnesota Power's discovery requests will be better addressed in the prefiled direct testimony to be presented.

Minnesota Power's motion to compel discovery is DENIED.

Motion to Dismiss

NAWO included a Motion to Dismiss in its response to Minnesota Power's Motion to Compel.  NAWO asserted that the degree of noncompliance can only be sanctioned by dismissal of Minnesota Power's Application for Exemption.[9]  Minnesota Power responded that there was no motion to compel the answers that NAWO sought, that the rules of the Office of Administrative Hearings do not support such sanctions for failure to made adequate discovery, and that Minnesota Power did answer the question, just not with the information NAWO sought.[10]  Absent a motion to compel and continued noncompliance with an order requiring that information be provided, further sanctions are premature.  Any timely sanction must be commeasurable with the level of noncompliance.  NAWO's Motion to Dismiss is DENIED.

Costs and Attorney's Fees

SOUL asserted that Minnesota Power's Motion to Compel was taken without required efforts to resolve the dispute and therefore SOUL should be entitled to an award of its costs and attorney's fees incurred in defending this Motion.  Both the number of intervenors and the brief timeline for discovery support participants taking prompt action to resolve discovery disputes.  There is no evidence to indicate that the Motion to Compel was brought in bad faith or to oppress the intervenors.  SOUL's request for costs and attorney's fees is therefore DENIED.

LAKE SUPERIOR GREENS

Lake Superior Greens submitted a request to be removed from intervenor status.  No party objected to this proposal.  Lake Superior Greens are therefore removed from the list of intervenors.  This change in status does not restrict their ability to participate in the public portion of this proceeding.

 

WITNESS AVAILABILITY

Witnesses offering prefiled testimony are required to be present at each hearing date and place by Minn. Rule 1405.2000.  That rule also permits exemptions from witnesses having to attend every hearing date "for good cause shown."  On July 14, 2000 Minnesota Power requested that a date certain be set for the testimony of two witnesses and gave notice of their limited availability.  On July 21, 2000 NAWO filed an objection to that request.  The Administrative Law Judge will hold hear arguments from any party wishing to be heard on the request at 1:30 p.m. on Monday, August 21, 2000 at the commencement of the final prehearing conference in this matter.  The EQB staff is directed to add to the Notice of Hearing being published that this motion is being heard, identify the witnesses for whom the exemption is sought, and note that, if the exemption is granted, the dates the witnesses will be available will be posted on the OAH website being maintained for this proceeding.[11]

The final prehearing conference in this matter will be held in person at the Office of Administrative Hearings.  Anyone wishing to participate in the argument and final prehearing conference by telephone conference must contact Michael Lewis, Staff Attorney at OAH, not later than August 17, 2000.  Mr. Lewis can be reached by telephone at 612-341-7610, or by e-mail at Michael.Lewis@state.mn.us.

 

K.A.N.

 

Arrowhead Transmission Line Project

Service List and Facsimile Numbers

OAH Docket No. 10‑2901‑12620‑2

 

  Kenneth Nickolai                                              Michael C. Krikava

  Administrative Law Judge                                Briggs & Morgan

  Office of Administrative Hearings                     2400 IDS Center

  100 Washington Square, Suite 1700               80 South 8 th Street

  100 Washington Avenue South                       Minneapolis, MN 55402

  Minneapolis, MN 55401‑2138                          612/334‑8566 (phone)

  612/341‑7640(phone)                                      612-334-8650 (fax)

  612/349‑2665 (fax)                                          KriMic@briggs.com

  ken.nickolai@state.mn.us

 

Deborah Amberg, Senior Attorney                   Dwight Wagenius

Minnesota Power                                            Assistant Attorney General

30 West Superior Street                                  900 NCL Tower

Duluth, MN 55802‑2093                                  445 Minnesota Street

218/723‑3930 (phone)                                     St. Paul, MN 55101‑2127

218/723‑3955 (fax)                                          651/296‑7345 (phone)

DAmberg@mnpower.com                                651/297‑4139 (fax)

                                                                            Dwight.Wagenius@state.mn.us

 

Bob Cupit                                                           Suzanne Steinhauer

MEQB Project Manager                                     MEQB Public Advisor

300 Centennial Building                                     300 Centennial Building

658 Cedar Street                                               658 Cedar Street

St. Paul, MN 55155                                           St. Paul, MN 55155

651/296‑2096 (phone)                                       651/296‑2878 (phone)

651/296‑3698 (fax)                                            651/296‑3698 (fax),

Bob.Cupit@mnplan.state.mn.us                        Suzanne.Steinhauer@mnplan.state.mn.us

 

Ginny Zeller                                                       Mike Michaud

Assistant Attorney General                                MN Dept. of Commerce

MN Dept. of Commerce                                     Suite 200

Suite 200                                                           121 7th  Place East

525 Park Street                                                  St. Paul, MN 55101

St. Paul, MN 55103‑2106                                  651/296‑2104 (phone)

651/296‑3701 (phone)                                       651/297-7891 (fax)

651/297‑1235 (fax)                                            MMichaud@dpsv.state.mn.us

Ginny.Zeller@state.mn.us                                                                                             

                                                                          

 

George Crocker                                                 Jeffrey Landsman (Dairyland Power)

North American Water Office                             Wheeler, Van Sickle & Anderson

PO Box 174                                                        25 West Main Street, Suite 801

Lake Elmo, MN 55042                                        Madison, W1 53703‑3398

651/770‑3861 (phone)                                       608/255‑7277 (phone)

651/770‑3976 (fax)                                             608/255‑6006 (fax)

GwillC@mtn.org                                                 JLandsman@wheelerlaw.com

 

Eric Hanson                                                       Anna Threlfall

World Organization for Landowners                  World Organization for Landowners

    Freedom                                                            Freedom

W1806 Wilson Road                                          N3438 Woodlawn Road

Hawkins, Wl 54530                                            Kennan, Wl 54537

715/585‑2452 (phone)                                       715/474‑6660 (phone and call first fax)

                                                                                                   

Brian Elliot                                                          Rosie Loeffler‑Kemp

Clean Water Action Alliance of MN                    Clean Water Action Alliance of Minnesota

326 Hennepin Avenue East                               394 Lake Ave. #312

Minneapolis, MN 55414                                     Duluth, MN 55802

612/623‑3666 (phone)                                       218/722‑8557 (phone)

612/623‑3354 (fax)                                             218/722‑1754 (fax)

BElliott@cleanwater.org                                   

                                                                           Ed Garvey

Bob Olsgard                                                       Pam McGillivray

Lake Superior Greens                                        Garvey & Stoddard

  W3060 Cook Road                                      634 West Main Street, Suite 201

  Sarona, WI 54870                                       Madison, Wl 53703

715/635‑8171 (phone)                                       608/256‑1003 (phone)

715/635‑8171 (fax)                                             608/256‑0933 (fax)

BOlsgard@spacestar.net                                   Garveylaw@aol.com

 

Bob Mussalem                                                   Dave Ludwig

Public Service Commission of Wis.                   Public Service Commission of Wis.

610 North Whitney Way                                    610 North Whitney Way

Madison, Wl 53707‑7854                                  Madison, Wl 53707‑7854

608/266‑1462 (phone)                                       608/266‑5621 (phone)

608/266‑3957 (fax)                                            608/266‑3957 (fax)

MussaR@psc.state.wi.us                                  LudwiD@psc.state.wi.us

 

Jan Conley                                                        

Lake Superior Greens                                       

P.O. Box 1144                                      

Superior, WI 54880                                

715/392‑5782 (phone)                                      

715/394‑8735 (fax)                                            

 

 


[1] CWAA Memorandum (July 5, 2000).

[2] Third Prehearing Order, dated May 26, 2000.

[3] SOUL Memorandum (July 17, 2000); WOLF Memorandum, at 2 (July 10, 2000).

[4] Minnesota Power Memorandum, at 5 (June 30, 2000).

[5] Minnesota Power Memorandum, at 1, 4 (June 30, 2000).

[6] Minnesota Power Memorandum, at 6 (June 30, 2000).

[7] Id.

[8] 1405.0400,Subp.3 A

[9] NAWO Memorandum, at 7-8 (July 10, 2000).

[10] Minnesota Power Reply (July 18, 2000).

[11] Reference to the main URL for the OAH website (http://www.oah.state.mn.us) is sufficient, since the link to the page for this proceeding is clearly marked.