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

 

FOURTH PREHEARING ORDER

 

          A fifth prehearing conference in the above-entitled matter was held on Monday, August 21, 2000, at 1:30 P.M. at the Office of Administrative Hearings, 100 Washington Avenue South, Minneapolis, Minnesota.  Several parties participated in the prehearing conference by telephone conference call.

          All parties on the attached Service List had the opportunity to participate in person or by telephone in the prehearing conference.

Based upon discussions with counsel and parties the following matters are now resolved and constitute the FOURTH PREHEARING ORDER of the Administrative Law Judge.  IT IS HEREBY ORDERED AS FOLLOWS:

 

1.     The request for consolidation by Clean Water Action and the North American Water Office is GRANTED.  No parties opposed the motion of CWA and NAWO to consolidate their participation in this matter.  The consolidation will improve the efficiency of the proceeding and is in the interest of the intervenors.

2.     The request for a time certain regarding testimony by Ann Stewart on behalf of the Pimicikamik Cree Nation for August 28, 2000 at 7:00 p.m. is GRANTED.  Similar requests by Douglas J. Mackenzie on behalf of the Split Lake Cree Nation, Jane Reyer on behalf of the National Wildlife Federation, and Elliot Leven on behalf of Nisichawayasihk Cree Nation are also GRANTED. 

3.     By request of the parties, all witnesses will be given the option of having their testimony delivered under oath or affirmation.  No witness will be required to swear or affirm as a condition of testifying.  A statement will be made at the beginning of each public portion of the hearing that witnesses have the option testifying under oath or affirmation and that declining to do so may affect the weight given to that witness' testimony.

4.     Minnesota Power's motion to exempt two of its witnesses from attendance at each public portion of the hearing is GRANTED.  Dr. John Moulder and Hooshang Khosrovani, M.E., are required to be present on August 28, 2000 through both the technical and public portions of the hearing.  In the event that the examination of those witnesses cannot be completed in the time available, Minnesota Power will make these witnesses available by telephone conference on a date to be determined to complete that examination.

5.     The schedule for prefiled testimony is modified as follows:  The direct testimony of Dr. Glass, provided by NAWO on August 21, 2000, is deemed timely.  Minnesota Power retains the right to make specific objections to that direct testimony.  The date certain for examining Dr. Glass is September 1, 2000. 

6.      WOLF's motion for summary disposition is DENIED for the reasons set forth in the accompanying Memorandum.

7.     The witnesses for Minnesota Power will appear in the order of the direct testimony filed prior to the hearing.  Cross-examination by the intervenors will be conducted in the order agreed upon by the intervenors.  The Department of Commerce will conduct its cross examination after the intervenors.  The MEQB staff shall conduct the final cross-examination of each witness.  Cross-examination of the intervenors' witnesses will be initiated by Minnesota Power.  The other intervenors are entitled to engage in cross-examination of those witnesses.

8.     Exhibits will be identified with the initials of the witness through which each exhibit is introduced and serially numbered for each witness.  Procedural exhibits shall bear the initials EQB and be serially numbered.  Public participants shall, where possible, bring ten copies of each exhibit to be introduced into the record.  Any participant seeking to have an exhibit or comment posted on the website maintained in this matter shall provide a copy of the document in electronic format.

9.      Minnesota Power's motion to exclude portions of the testimony of Dr. Duane Dahlberg is GRANTED for question number 36 and is DENIED for all other questions for the reasons set forth in the accompanying Memorandum.

10.  This Order may be modified upon reasonable stipulation of the parties and notification to the ALJ or upon written motion for good cause shown.

 

Dated this

24th

day of

August,

2000.

 

 

                                                                

/s/ Kenneth A. Nickolai

KENNETH A. NICKOLAI

Administrative Law Judge

 

 

 

MEMORANDUM

 

WOLF Summary Disposition Motion.

 

In its motion for summary disposition, WOLF raises several types of issues.  The first are policy issues arguing for a more complete review of potential environmental impacts from the proposed project.  To support its motion, WOLF urges that emissions from the Dakotas will directly affect Minnesota residents and that over 1,735 comments were submitted by individuals to the MEQB.  Wolf also argues that the coordination provisions of the Minn. Stat. Sec. 116C.53, subd. 3, governing interstate routes supports the need for a more complete environmental review.

 

The Administrative Law Judge is not persuaded that these are reasons to dismiss the application for exemption.  Minnesota law specifically permits an application to be submitted under the exemption process.  The MEQB considered the policy arguments on how to proceed when it chose to order a hearing and define the scope of that hearing.  The evidentiary and public hearings scheduled to begin on Monday, August 28, 2000 are being held pursuant to that MEQB decision.  The Administrative Law Judge concludes that the MEQB has considered the policy arguments raised by WOLF's motion and those policy decisions were made within the permissible scope of the law.  Summary disposition is not warranted on these policy grounds.

 

The second group of arguments made by WOLF to support dismissal are factual in nature.  WOLF contends that the proposed line exceeds the permissible length for an exemption.  WOLF also contends that the exemption application is incomplete since it did not contain a prediction of the noise levels of a 345kv line.  WOLF also contents that the project is part of a connected or phased action which cannot qualify for the exemption.  The applicant disagrees with the factual bases of these arguments.

 

Summary disposition is the administrative equivalent of summary judgment.[1]  Summary judgment is appropriate where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.[2]  A genuine issue is one that is not sham or frivolous.  A material fact is a fact whose resolution will affect the result or outcome of the case.[3]

 

After review, the Administrative Law Judge concludes that these are disputed factual issues that can be appropriately raised during the hearing process.  These disputed factual assertions do not support a summary dismissal of the application.

 

 

 

Minnesota Power Motion to Exclude Testimony

 

Minnesota Power made objections to portions of the expert testimony of Duane Dahlberg, Ph.D.  These objections were made on the basis of relevance, materiality, speculation, foundation, beyond the scope of the MEQB order, and calling for a legal conclusion.[4]  SOUL responded to the motion, addressing the objections made and including revised questions to avoid the foundation objections.  Each question that was objected to will be addressed.  The numbering system used by Minnesota Power will be used to identify each question and the responsive testimony.

 

Questions 8, 9, 10, 12, and 14

 

Testimony responding to these questions was objected to on the basis of relevance, materiality, speculation, and foundation.  This testimony is permissible foundational information, related to his conclusion.  The testimony will be subject to cross-examination to explore its reliability.

 

Questions 18 and 19

 

Testimony responding to these questions was objected to on the basis of relevance, materiality, speculation, foundation, and beyond the scope of the MEQB order.  For question 18 the objections included calling for a legal conclusion.  This is fact testimony, not necessarily requiring an expert, but certainly within the scope of this expert's specialized knowledge.  No legal conclusion is called for or given in the testimony responsive to question 18.

 

Questions 20 and 21

 

Testimony responding to these questions was objected to on the basis of relevance, materiality, speculation, and foundation.  The questions related to stray voltage and the inadequacies of existing studies.  While the phenomenon described as "stray voltage" is not specifically at issue in this matter, an expert may draw conclusions to the matter at issue from related areas.  The Administrative Law Judge will allow counsel to explore this area, however, it will be the obligation of counsel to establish the relevance of stray voltage to this proceeding.

 

Questions 23, 24, 27 and 28

 

Testimony responding to these questions was objected to on the basis of materiality, speculation, and foundation.  The answer to question 23 was also objected to as calling for a legal conclusion.  SOUL indicated that the testimony was elicited to directly respond to areas explored by Dr. Moulder, an expert witness for Minnesota Power.  The testimony to these questions goes to areas properly explored as part of this proceeding.  None of the testimony calls for a legal conclusion.

 

Questions 33 and 36

 

Testimony responding to these questions was objected to on the basis of relevance, materiality, speculation, foundation, and being beyond the scope of the MEQB order.  The answer to question 33 sets forth this witness' opinion about research and study methods is information within the expert's area of knowledge and addresses specific issues raised in this proceeding.  The testimony responding to question 36 is a fact question that is not related to any issue present in this matter.  Whether groups have formed that are "convinced that EM is unsafe" does not establish scientific consensus regarding the matter and is irrelevant to any issue identified in this proceeding.  The objection to the testimony elicited from question 36 is granted on the ground of relevance.

 

Questions 40 and 41

 

Testimony responding to these questions was objected to on the basis of relevance, materiality, speculation, foundation, and being beyond the scope of the MEQB order.  The testimony explores limitations on the system of peer review for validating studies.  Since Minnesota Power's expert testimony relies upon the fact of peer review to bolster the weight of those experts' conclusions, SOUL is within its rights to explore that area.

 

Questions 42, 43 and 44

 

Testimony responding to these questions was objected to on the basis of materiality, speculation, and foundation.  The testimony elicited the ultimate conclusions of the expert on EM energy generally and the Arrowhead project specifically.  These are matters within the scope of the expert's knowledge and the testimony is admissible.

 

Questions 45 - 52

 

Testimony responding to these questions was objected to on the basis of relevance, materiality, speculation, foundation, being beyond the scope of the MEQB order, and calling for a legal conclusion.  The only exception was for question 45 where no objection was made on the basis of being beyond the scope of the MEQB order.  The testimony addresses the issue of what protective measures should be used when considering changes with potential impacts on human life and the environment.  SOUL is entitled to introduce expert testimony that propounds a different approach to potential impacts from that of Dr. Moulder.  The testimony responding to questions 45 through 52 will not be excluded on the grounds asserted.

 

Attachments

 

Minnesota Power objected to the documents attached to Dr. Dahlberg's curriculum vitae (identified as DAD-1).  The objections were on the basis of relevance, materiality, speculation, foundation, and being beyond the scope of the MEQB order.  Soul indicates these reports were prepared as part of the expert's studies in the field of EM effects and they are relevant to the ultimate issues of impact on human health and the environment.  The evidence will not be excluded on the grounds set forth by Minnesota Power.

 

Minnesota Power's August 24,2000 Objection

 

Minnesota Power objected to SOUL's filing of "amended testimony" and asserted that Dr. Dahlberg does not meet the Goeb v. Tharaldson standard for admission of his opinions as those of an expert.  The standard requires that scientific evidence must be "generally accepted within the relevant scientific community" and "its foundation must be reliable."[5]  Minnesota Power has not identified any particular scientific proposition by Dr. Dahlberg that is not generally accepted or reliable.[6]  Minnesota Power has criticized the conclusions that Dr. Dahlberg draws from those scientific propositions.  As SOUL suggested, that objection goes to the weight to be afforded the testimony, not its admissibility.  As to the "amended testimony" objection, the changes appear to be clarifications of the questions asked, not the testimony provided.  Were the direct testimony to be delivered in person and a similar objection made, the opportunity to correctly ask the question would be afforded.  There is no prejudice to allowing that testimony now.  Minnesota Power's August 24, 2000 objection is DENIED.

 

 

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] Minn. Rule 1400.5500(K).

[2] Sauter v. Sauter, 70 N.W.2d 351, 353 (Minn. 1955); Louwagie v. Witco Chemical Corp., 378 N.W.2d 63, 66 (Minn. App. 1985); Minn.R.Civ.P. 56.03 (2000).

[3] Illinois Farmers Insurance Co. v. Tapemark Co., 273 N. W.2d 630, 634 (Minn. 1978); Highland Chateau v. Minnesota Department of Public Welfare, 356 N.W. 2d 804, 808 (Minn. App. 1984).

[4] Minnesota Power discussed the threshold standard for qualifying a person as an expert witness in its arguments on this motion.  The threshold standard, recently reiterated as the Frye-Mack standard (see Goeb v. Tharaldson, CX-98-2275 (Minn. August 17, 2000) is the basis for determining that a witness does not qualify as an expert.  None of the objections asserted against this testimony were based upon that standard.

[5] Goeb v. Tharaldson, CX-98-2275 (Minn. August 17, 2000).

[6] In addition, Minn. Rule 1405.1700, subp. 3, contemplates a more relaxed evidentiary standard than needed by district courts sitting with juries.  The Administrative Law Judge and the MEQB will be able to assess the appropriate weight to be given Dr. Dahlberg's testimony upon review of the record as a whole, including his cross-examination.