Legalectric

ILSR’s John Farrell is halfway there – he recognizes the federal part of the transmission equation, but the state part is missing, for example, Minnesota’s special eminent domain exemptions for “Public Service Corporations” (particularly where the transmission is for private profit, NOT public service), rate recovery for “Construction Work in Progress” and state regulators refusal to examine the interstate nature of transmission proposals.  And the third part of that unholy trinity — in the Midwest, bulk power transmission would not be being built but for the Settlement Agreement – ME3(Fresh Energy), Izaak Walton League (and Walton’s program Wind on the Wires), Minnesota Center for Environmental Advocacy, and North American Water Office.  This glut of transmission is their legacy.  It takes all three to build transmission.

From Grist, today:

Feds running a high-voltage gravy train for power transmission

by John Farrell
28 Jun 2011 6:00 AM

Even as distributed generation shows economical and political advantages over centralized renewable energy, the Federal Energy Regulatory Commission (FERC) is running a high voltage gravy train in support of expanded transmission. FERC’s lavish program is expanding large transmission infrastructure at the expense of ratepayers instead of looking at more economical alternatives.

Since 2007, FERC has had 45 requests for bonus incentives for transmission development — authorized under the 2005 Energy Policy Act — and has provided all or most of the requested incentives in more than 80 percent of the cases. With the bonuses, the average return on equity for utilities for their new transmission investments is nearly 13 percent. This high rate of return is a full 2.5 percentage points higher than the median utility return on equity [PDF], a value considered just and reasonable by state public service commissions in ordinary times. However, these rewards came during a time when unemployment doubled, the stock market tumbled, and most corporations were lucky to have any profit.

The ratepayer impact of these bonuses is significant. In a November 2010 criticism of FERC transmission awards, Commissioner John Norris noted that the 2 percent bonus FERC provided to the PATH high-voltage project on the Eastern seaboard would “cost [Maryland] ratepayers in PJM at least $18 million per year.” The bonus payments were also given in concert with other incentives that reduced risk, including rate recovery during construction and guarantee of payment if the facilities were abandoned for reasons outside utility control.

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You may remember prior posts about that but I’ll start from the beginning and try to make it quick.  There’s a pattern at the Office of Administrative Hearings that is disturbing…

Way back on the MinnCan pipeline, members of U-CAN had tried to intervene and were refused.  They got late notice and were not represented, stumbling through the administrative process pro se.  MPIRG showed an interest and started working on it, among other things, submitting a Petition for Intervention:

MPIRG Petition for Intervention – MinnCan Pipeline

Despite the late notice and their attempts to “work within the system,” the Petition of MPRIG individual U-CAN members was denied:

OAH – Denial of Intervention

And when they appealed, they were tossed out, as if they had not even tried to intervene:

MinnCan Appellate Decision

So when CapX 2020 hit, and they filed a Certificate of Need and landowners learned it wasn’t just the pipeline, but now transmission TOO (how much can a landowner stand?) they got right to it, and intervened as United Citizens Action Network (U-CAN), participating pro se as they had no resources to hire an attorney and were in condemnation and appellate court at the time.  They Petition, and were admitted as full parties.  So what happens?

Judge Heydinger, the same ALJ in the CapX Certificate of Need case as in the MinnCan pipeline case, files sua sponte (on her own initiative, not a Motion brought by parties) a demand that they explain why they, and the Prairie Island Indian Community,  should remain intervenors:

Order to Show Cause – U-CAN

Order to Show Cause – Prairie Island Indian Community

This had been done before in the Excelsior Energy Mesaba Project siting docket, where ALJ Steve Mihalchick booted out Xcel Energy, Minnesota Power, and my client, Public Energy – Mesaba, because no testimony had been provided:

5th Prehearing Order

This docket went forward, there were two days of hearings, first in Taconite, where ALJ Mihalchick rammed through 4 witnesses and where we weren’t provided adequate opportunity for questioning, and, I swear, when I tried to get a table, he said, “Whatever would you need a table for?”  Really… after much hassle, Bill Storm of Commerce found one (thank you!!).  Since that day, I bring my own.  Anyway, the second day, it was -30 in Hoyt Lakes and the hearing was in the unheated gym next to the hockey rink.

That day, Judge Mihalchick rammed through … what… 16 witnesses?…  in one day, and left saying, “I’m not coming back here.”

Travesty doesn’t begin to characterize that hearing.  And worse, Excelsior Energy got a permit for a vaporware project:

Excelsior Energy Mesaba Project siting hearing

Fast forward to 2011, where ALJ Heydinger has now again issued a similar Order to Show Cause regarding two intervenors, Energy Cents and Verso Paper:

Order to Show Cause

Here’s Verso Paper’s response:

Response to Order to Show Cause – Verso Paper

Just filed:   Order Confirming Party Status – Verso Paper

Where’s the Energy Cents Coalition?

Anyway, I’ve submitted a Rulemaking Petition to OAH about Minn. R. Ch. 1400 & 1405 to try to address some of this.  We shall see…

Thursday, June 30, the last day before the state government shuts down, the Public Utilities Commission will hear oral arguments and deliberate and likely decide fate of the AWA/Goodhue Wind Project.

PUC Staff Briefing Papers

The Staff Briefing Papers matter-of-factly point out a couple of things that make a huge difference in this case:

In the ALJ’s December 8, 2010 First Prehearing Order, Order point #13 noted:

13. As noted above, the parties may submit legal argument on how the good cause standard should be applied, if at all, in their closing memoranda. In particular, the Administrative Law Judge would like the parties to brief the issue whether Minn. Stat. 216F.081 (2008) is intended to apply only to counties that have assumed the responsibility to process applications and issue permits for LWECS with a combined nameplate capacity of less than 25 MW pursuant to Minn. Stat. 216F.081. …

This is not an issue that the Commission referred to the ALJ. The ALJ’s findings on this issue are included in her report as findings #39 – 47.

And shortly after that:

Staff recommends that the Commission consider all parties‟ positions on this matter and their previous November 2, 2010 Order for Hearing (cited above).

Staff believes that if the Commission comes to the same conclusion as the November 2, 2010 Order, it should strike ALJ findings #40-46 on the basis that the Commission has already considered this matter and the matter was not referred to the ALJ. Findings #39 and 47 are general in nature and staff doesn’t believe the findings would need to be omitted.

The recommendation of staff to the Commissioners?  Hold on to your seats:

Staff recommends adopting the ALJ’s Report with the following changes:

1) modifications to findings #10, 60 and 71 as outlined in Attachment B under “Staff”;
2) striking findings #40-46, as discussed above; and
3) providing for other modifications the Commission deems necessary.

YEAAAAAAA! From there to where this should be isn’t all that far…

To watch the oral arguments and PUC’s deliberation, CLICK HERE and then click the blue button to “Watch Webcast!” Or come on down, Thursday, 9:30 a.m. ( a little after, we’re 2 and 3 on the agenda), at 121 – 7th Place East, 3rd Floor, Large Hearing Room, St. Paul, MN, 55101.

Not much time to pull this together, but a couple of things to note before I head off to Cannon Falls for the hearing today…  From my stats, it’s clear people want more information — there’s flooding,and it’s a lot:

Interview with Bernard Shanks – from KMOX –  Total Information AM

“Fort Peck dam failed when it was under construction, it failed… 8 men are buried in it…”

… and in response to Shank’s claims, here’s the response from the US Army Corps of Engineers, the Ft. Peck dam operators:

Fort Peck officials work to stay ahead

Increased water release from Ft. Peck dam continues

If you’ve not been to Fort Peck dam, put it on your list and get there.  The campground there is one of the things that will stand out in my memory forever, what a dogforsaken place it was in the 60s…  The ranger came around to say hello, he’d been out shooting rattlesnakes, had a bag full, and cautioned us!

So back to the impacts of the flooding.  There’s water, water everywhere…  surrounding the Fort Calhoun nuclear generating plant, and it’s getting higher, the plant is now completely surrounded by water and sandbags are for now keeping it at bay. June 6, the day of the fire, a no-fly zone was declared that remains today:

Airspace over flooded nuclear plant still closed

OPPD addresses Ft. Calhoun rumors

And here’s the OPPD site:

OPPD Flood Rumor Control

Who needs rumors when we’ve got the truth!

Remember the flooding info and maps I’d posted a couple of days ago, noting that two nuclear plants in Nebraska were in the flood inundation area?

Low-level emergency declared at nuclear power plant

Well, Frieda Berryhill sent this photo of the flooding at the Ft. Calhoun nuclear plant:

Check the video, Omaha Public Power District – OPPD didn’t want the news crew filming the flooding!!!  And thankfully, they reported that point:

Flooding nuclear power station property

As if the flooding isn’t enough, they had an electrical fire, and shut down the spent fuel pond pumps to aid in fighting it.  There are many articles posted on this, all the IDENTICAL AP article, and not one mention of flooding:

Nuke plant stopped spent fuel pumps to fight fire

Here’s a local paper with some additional details:

Smoke causes scare at nuclear plant

Omaha Public Power District’s release on the flood:

OPPD Declares Notification of Unusual Event

June 6, 2011

As mentioned last week, the rising Missouri River waters have reached a level where OPPD is declaring a Notification of Unusual Event (NOUE) at its Fort Calhoun Nuclear Station. According to projections from the U.S. Army Corps of Engineers, the river level at the plant site is expected to reach 1,004 feet above mean sea level later this week, and is expected to remain above that level for more than one month. OPPD notified the Nuclear Regulatory Commission and emergency management agencies in Nebraska and Iowa of the declaration.

A NOUE is the least-serious of four emergency classifications that are standard in the U.S. nuclear industry. Fort Calhoun Nuclear Station will not move out of this emergency classification until it is confident the water will remain below the 1,004-foot level.

The Nuclear Regulatory Commission notes that a Notification of Unusual Event indicates events are in process or have occurred which indicate potential impacts to the plant. No release of radioactive material requiring offsite response or monitoring has occurred or is expected.

Fort Calhoun was in safe shutdown mode since early April for refueling the plant, and remains in that condition. In addition to the existing flood-protection at the plant, OPPD employees and contractors have built earth berms and sandbagged around the switchyards and additional buildings on site. They also are filling water-filled berms around the plant and other major buildings on site, have staged additional diesel fuel inside the Protected Area and are building additional overhead power lines to provide another option for power for the plant’s administration building, Training Center and one of its warehouses.