Legalectric

This is one of those things that’s been bugging me for a long time, and I’m finally getting around to looking it up.  There are a few twists and turns, and this is a long post, with a lot of links and a lot of audio listening for you to dig in if you’re interested.  If you’re a landowner, you sure better be!  If you’re a landowner affected by utility infrastructure, this is required reading and listening!

Here we go!

History of Minn. Stat. 117.189

Here’s the statute (the specific statutory cites below are linked):

117.189 PUBLIC SERVICE CORPORATION EXCEPTIONS.

Sections 117.031; 117.036; 117.055, subdivision 2, paragraph (b); 117.186; 117.187; 117.188; and 117.52, subdivisions 1a and 4, do not apply to public service corporations. For purposes of an award of appraisal fees under section 117.085, the fees awarded may not exceed $500 for all types of property.
History:

2006 c 214 s 14

Short version – this bill was a bipartisan sell-out that exempted CapX 2020 and any other public service corporation project from eminent domain that every other entity must comply with.  Why on earth would they do this… or rather, what innocent explaination is there for this 117.189 section of the bill?

So far that I’ve heard (only ~6 hours thus far), Sen. Scott Dibble is the only one asking “Why exempt public service corporations?”

The only Senators who voted against this were:

Anderson, Cohen, Dibble, Hottinger, Marko, Moua, Pappas, Ranum, Skoglund

The only Reps who voted against this were:

Davnie, Ellison, Goodwin, Hausman, Hornstein, Huntley, Johnson, S., Kahn, Lanning, Lenczewski, Mahoney, Mariani, Mullery, Paymar, Thao, Wagenius, Walker

Please take a few minutes and send them a thank you note!  Here’s a link to their emails:

House Members

Senate Members

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First, some more history, going back to my all time favorite bill:

2005 TRANSMISSION OMNIBUS BILL FROM HELL

Remember, this was the bill that grew from the deal the enviros did in 2003, incorporating the material terms of that deal into the 2005 Omnibus bill.

ME3, MCEA, Waltons, NAWO -TRANSLink deal

And… why… look, there’s language in the 2005 Transmission Omnibus Bill from Hell mandating an “Eminent Domain Landowner Compensation — Landowner Payments Working Group!”

55.35                             ARTICLE 1155.36               EMINENT DOMAIN LANDOWNER COMPENSATION56.1      Section. 1.  [LANDOWNER PAYMENTS WORKING GROUP.]56.2      Subdivision 1.  [MEMBERSHIP.] By June 15, 2005, the56.3   Legislative Electric Energy Task Force shall convene a landowner56.4   payments working group consisting of up to 12 members, including56.5   representatives from each of the following groups:56.6   transmission-owning investor-owned utilities, electric56.7   cooperatives, municipal power agencies, Farm Bureau, Farmers56.8   Union, county commissioners, real estate appraisers and others56.9   with an interest and expertise in landowner rights and the56.10  market value of rural property.56.11     Subd. 2.  [APPOINTMENT.] The chairs of the Legislative56.12  Electric Energy Task Force and the chairs of the senate and56.13  house committees with primary jurisdiction over energy policy56.14  shall jointly appoint the working group members.56.15     Subd. 3.  [CHARGE.] (a) The landowner payments working56.16  group shall research alternative methods of remunerating56.17  landowners on whose land high voltage transmission lines have56.18  been constructed.56.19     (b) In developing its recommendations, the working group56.20  shall:56.21     (1) examine different methods of landowner payments that56.22  operate in other states and countries;56.23     (2) consider innovative alternatives to lump-sum payments56.24  that extend payments over the life of the transmission line and56.25  that run with the land if the land is conveyed to another owner;56.26     (3) consider alternative ways of structuring payments that56.27  are equitable to landowners and utilities.56.28     Subd. 4.  [EXPENSES.] Members of the working group shall be56.29  reimbursed for expenses as provided in Minnesota Statutes,56.30  section 15.059, subdivision 6.  Expenses of the landowner56.31  payments working group shall not exceed $10,000 without the56.32  approval of the chairs of the Legislative Electric Energy Task56.33  Force.56.34     Subd. 5.  [REPORT.] The landowner payments working group56.35  shall present its findings and recommendations, including56.36  legislative recommendations and model legislation, if any, in a57.1   report to the Legislative Electric Energy Task Force by January57.2   15, 2006.

Now, let’s take a look at who was on that Committee:

REPRESENTATIVE MEMBERS

1. Jim Musso (Xcel Energy) representing transmission owning investor-owned utilities
2. Bob Ambrose (Great River Energy) representing electric cooperatives
3. Mrg Simon (Missouri River Energy) representing municipal power agencies
4. Chris Radatz-representing the Minnesota Farm Bureau
5. Tim Henning (farmer) representing the Minnesota Farmers Union
6. Jack Keers (Pipestone County Commissioner) representing county commissioners
7. Robin Nesburg (Rural Appraisal Services) representing real estate appraisers

AT LARGE MEMBERS

8. Beth Soholt (Wind on the Wires)
9. John Nauerth III (farmer)
10. George Crocker (North American Water Office)
11. Bob Cupit (Public Utilities Commission)
12. Bill Blazar (Minnesota Chamber of Commerce)

Here’s the report of the Work Group:

LANDOWNERS’ PAYMENTS WORKING GROUP

REPORT TO THE LEGISLATIVE ELECTRIC ENERGY TASK FORCE  (LEETF)

Laws 2005, chapter 97, article 11, required the Legislative Electric Energy Task Force (LEETF) to create a landowners’ payments working group to study alternative methods of remunerating landowners on whose land high-voltage transmission lines have been constructed.

The group was created, met twice, and this is a report of its findings and recommendations.

LANDOWNER PAYMENTS GROUP FINDINGS

1.  Farm owners in southwestern Minnesota want compensation for high-voltage transmission line easements to be paid annually as a percentage of the current value of the land so that as land values rise or drop, the payments rise or drop accordingly.

2.  Easement acquiring utilities are not in favor of the proposal described in item #1 and do not want to fundamentally change the current method of payment for easements, which consists of a onetime payment based on a percentage value of the land over which the easement is acquired.

3.  The Legislature has the authority to mandate the payment system described in item #1.

4.  There are no jurisdictions that have the payment system described in item #1.

5.  The payment system described in item #1 would be more expensive than the current payment system, assuming the percentages proposed by the landowners with attendant upward pressure on rates.

6.  There is a social value to having a harmonious, nonadversarial process to acquire high-voltage transmission line easements that has an economic value that is hard to quantify.

7.  There is a sense that the process for negotiating an easement and/or contesting it by a landowner is too expensive and complicated and it may be helpful to search for legislative ways to ensure that all similarly situated landowners receive the same just compensation without being intimidated by the process or forced to great expense by the process.

8.  While this group was formed due to farm landowner concerns, the scope of the charge extends to all landowners.  Guidance from the task force is necessary as to the scope of the charge because the scale of the issue is altered if any easement over any land is the subject of the discussion.

9.  While the direct parties in interest–the landowners and utilities–are stalemated, the current push to acquire easements for new lines makes the issue one that should have a firm handle kept on it.

RECOMMENDATIONS

1.  If further work is to be done on this topic, the task force should provide the guidance described under finding #8.

2.  If the task force wants to continue work on this topic and wants more public input, it should consider utilizing the same persons who are on the current study group.

3.  The task force may wish to consider whether there are flaws in the current easement acquisition process related to its expense to landowners to contest and perceived intimidating qualities.

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Let’s look at the eminent domain bills the following session, Senate bill, SF 2750 and the House bill, HF 2846.

SF 2750

Senate Authors, none added after introduction:    Bakk ; Kiscaden ; Bachmann ; Chaudhary ; Kubly

Bill as introduced, had the Public Service Corporation exemption AND the appraisal fee limitation:

12.8        Sec. 14. [117.189] PUBLIC SERVICE CORPORATION EXCEPTIONS.
12.9    Sections 117.031; 117.036; 117.055, subdivision 2, paragraph (b); 117.186; 117.187;
12.10   117.188; and 117.52, subdivisions 1a and 4, do not apply to public service corporations.
12.11   For purposes of an award of appraisal fees under section 117.085, the fees awarded may
12.12   not exceed $500 for all types of property.

On the Senate side, there are some interesting statements in the first Committee hearing, Judiciary, discussion about limiting who can speak at county meetings about eminent domain (!!!), limitations of attorneys’ fees… and there’s a discussion that I’m trying to transcribe … will post soon…

Senate Judiciary – March 9, 2006 – PART I

Senate Judiciary – March 9, 2006 – PART II

Senate State and Local Government Operations – March 13, 2006 – Part I

Senate State and Local Government Operations – March 13, 2006 – Part II

Here’s Sen. Dibble questioning, in State and Local Government Operations – March 13, 2006 Part I (linked):

MARCH 13, 2009

Senate State and Local Operations Committee

Sen. Dibble: I guess I have a larger policy question, why we think that utilities should be exempted from the provisions of this bill when we think that eminent domain is such a problem that we need to address.

Chair: We’ll ask Senator Bakk to address this question.

Sen. Bakk:    I think  You can have that question, as far as this amendment is concerned, it wouldn’t change anything in the bill other than just referencing the statutes, that statutory definition of utility. So, so, if you don’t like what’s in the bill, that’s fine, but this amendment doesn’t change anything.

Dibble:  I think it is a subject of interest that we should have as a policy committee, and as a larger public discussion.

Sen. Bakk:  Well, Madam Chair, Mike Ahern was, this question was asked at the judiciary committee and Mike Ahern came to the table and gave a pretty good explanation to the Committee of why utilities aren’t included.  This isn’t new that utilities are not included, this bill has been floating around, I think this is its third session, they’ve always not been included for a number of reasons.  One, they’re regulated by the Public Utilities Commission already.  And there is the Energy Task Force that’s looking at all of these energy issues, so, there are also provisions in law where, for instance, when they’re siting transmission lines, that there is a special provision in law, that if you’re gonna go over a farm, in addition to buying the easement for the powerline, the property owner has the right to ask that the entire farm be bought, I believe it’s called the Buy the Farm provision, but there are a number provisions in law, and maybe a little later when Mr. Ahern gets here, oh, he is here, Madam Chair, if you’d like, maybe he can respond to Senator Dibble’s question.

Chair: Mr. Ahern?

Mike Ahern: Yes, good morning Madam Chair, members of the committee, I’m Michael Ahern, and I represent a variety of utilities, pipeline, telecommunications
The question is the reason for exclusion of public service corporations. … I got in a little late.  Senator Bakk did touch on a number of the reasons. The reasons are, frankly, that the, substantively, most of the law governing public service corporations are dealt with in other sections of the statute, for example, Chapter 116C, governs powerlines, and not only does it deal with the grants of eminent domain, it sets up quite elaborate processes for, which this legislation addresses, quite elaborate public input processes, such as sets up EQB staff as facilitator for how and why a pipeline or powerline gets established.  There are things, again, that also conflict, such as the going concern provision, which is a major issue in this bill.  Public utilities are subject to language that entitles a farmer or business owner to take the entire farm or business at their option, since 1977.  I could go on and there are a lot of distinctions between, and reasons why at least traditionally, the legislature has dealt with utilities separately.

Chair:  Any other questions?  Sen. Dibble?

Sen. Dibble:  Thank you.   I’m not prepared yet to have a huge debate on this, but I think the same arguments could be made for local governments that are subject to elaborate processes in state law, and we can certainly look to examples that, driving motive and intent behind this statute, similarly we see places where people complain bitterly about abuses at the hands of public utilities, you can drive down Hwy. 52 and stills see the signs in people’s front yards about how they felt they were treated when a large powerline was being rammed along that corridor.  So it’s interesting that we’re making a special exception essentially for private entities that have been identified as culprits of abuse of eminent domain authority.

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HF 2846

Introduced with these authors: House Authors    Johnson, J. ; Thissen ; Smith ; Davids ; Dill ; Paulsen
By the end, here is who signed on to this:
House Authors        Johnson, J. ; Thissen ; Smith ; Davids ; Dill ; Paulsen ; Penas ; Moe ; Garofalo ; Nelson, P. ; Wardlow ; Magnus ; Cybart ; Olson ; Westrom ; Erickson ; Klinzing ; Charron

As introduced it had the Public Service Corporation exemption:

5.25         Sec. 9. [117.189] PUBLIC SERVICE CORPORATION EXCEPTION.
5.26     Sections 117.031, 117.186, 117.187, and 117.188 do not apply to public service
5.27     corporations.

*** The sentence about appraisals did not appear in it as introduced or in the 5 engrossments online.

Here’s the House Research explanation of that paragraph:

12      Public service corporation exception. Provides that the provisions for attorneys’ fees (section 4 ), compensation for loss of going concern (section 8 ), minimum compensation (section 10 ), and limitations (section 11 ), do not apply to public service corporations.

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Conference Committee

04/12/2006      Senate conferees       Bakk, Murphy, Betzold, Higgins, Ortman
04/12/2006      House conferees       Johnson, J.; Abrams; Davids; Anderson, B.; Thissen

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Here are the reports of House and Senate adoption of Conference Committee Report, including votes:

Senate Adopted Conference Committee Report, bill repassed

House Adopted Conference Committee Report, bill repassed

Yesterday, Baron, one of our German Shepherd buddies, had emergency surgery.  He’d had a bump, his owner thought he might have a hernia or something, and she brought him to the vet, nada, she and the vet couldn’t find a thing.  Then, a couple of weeks later, he was acting like he was hurting, whimpering and laying around, and she found it again, what felt like a small bump, and brought him in again.  They took an X-ray and OH MY DOG!  It looked “bigger than a softball, maybe soccor ball size!”  He was instantly scheduled for surgery on Monday.

Here’s what they found attached to his spleen:

EEEEEEEEEEEEEUW, that tumor weighed in at 7.5 pounds.  It’s as if the poor dear had a cesarean.  WOW!  What more is there to say.  It’s a good thing his owner was persistent.  He’ll be a lot happier pup now that that’s gone.  WOW!  YEOW!  Oh, it hurts to think about…

It’s out today, Dan Gunderson at MPR has done an extensive piece on the Minnesota Public Utilities Commission “investigation” of wind turbine noise and health impacts, looking at, per the PUC:

The Commission is gathering information to determine if current permit conditions on setbacks remain appropriate and reasonable.

PUC – Notice WITH SERVICE LIST

Here’s the audio — full text is way below:

What concerns me is that, again, they only gave notice of this docket to the wind industry, and not the people intervening or commenting in PUC wind dockets who raised this issue in the first place, and my comment on that to the PUC, urging them t expand the Notice:

Overland Comments – Request for Broader Distribution of Notice

To see the PUC’s wind turbine setback docket, go to www.puc.state.mn.us, click “eDockets” on lower right, and search for docket 09-845.

And here’s the MPR piece in writing:

Wind turbine noise concerns prompt investigation

by Dan Gunderson, Minnesota Public Radio

August 4, 2009

Valley City, ND — Wind farms are rapidly expanding across the Midwest, and a growing number of residents who live near the wind turbines are complaining about noise.

In Minnesota, those complaints prompted the Public Utilities Commission to investigate.

When Dennis and Cathryn Stillings chose a place to retire, they were looking for solitude and quiet. So a couple of years ago, they bought a farmstead in the rolling hills of eastern North Dakota.

Soon after they moved in, dozens of wind turbines sprouted in a neighbor’s nearby field.

Dennis Stillings said he wasn’t bothered at first because he supported wind energy and he was told the turbines were quiet, no louder than 55 decibels.

“Which is about the same level as your refrigerator running, or the same level as my conversation right now,” Stillings said. “Well, if I was holding a conversation with someone in my living room and someone in the corner was sitting there going bop, bop, bop at 55 decibels, it would drive me nuts and I’d kick him out.”
Larger view
Wind turbines

The Stillings said what bothers them is the pulsating, low-frequency sound. They say it’s like a giant dishwasher, or a helicopter in the distance. Cathryn Stillings said there’s no escaping the sound and that she’s having trouble sleeping.

“It’s a duller sound in the house but it’s still out there,” she said. “You can hear it through the walls. It just kind of gets in your bones.”

The Stillings’ complaints are similar to cases popping up around the country in the past couple of years, as wind farm expansion moves closer to populated areas. Complaints include headaches, dizziness and trouble sleeping.

In Minnesota, a handful of groups have organized to demand tougher regulation. They want the state to require more distance between wind turbines and homes. A report by the Minnesota Department of Health concluded there are potential health concerns.
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The South Heart North Dakota coal gasification is now going to be an ELECTRIC GENERATION plant.  DUH!  The 800 pound gorilla has just started jumping around the room.  This IGCC plant will be up and ready just in time to use CapX 2020 transmission — DUH!  And if you’re surprised, you’re in the wrong business.

Published August 01 2009

A change in plant plans

What was slated to be a coal gasification plant near South Heart will now produce electricity, a company spokesman said Friday.

By: Jennifer McBride and Beth Wischmeyer, The Dickinson Press

What was slated to be a coal gasification plant near South Heart will now produce electricity, a company spokesman said Friday.

Members of the Industrial Commission of North Dakota continue to support Great Northern Project Development/Allied Syngas Corp.’s ongoing development of the South Heart project. The commissioners prepared a letter of support to Chairman Charles Kerr of GNPD, after discussing the project at their Friday meeting in Bismarck. Commissioners have supported the project and $10 million has been committed to it, along with legislative and technical support, according to the letter.

“The site is ideally located to take advantage of the existing transmission infrastructure and GNPD’s unique access to extensive, low-cost coal reserves,” according to the letter.

The plant will be located four miles south and two miles west of South Heart and will be a

coal-to-hydrogen electrical generation plant.

Rich Voss, Great Northern vice president, said the company asked the commission for support because it is applying for U.S. Department of Energy funding for its plant. Voss said this plant will be more marketable and is a very clean project carbon-wise. He hopes plant construction will begin in 2011 and said permits for the 2 million ton-per-year coal mine are likely to be filed late this year or early next year.

“They originally were going to be a power plant, then a gasification plant then a coal-drying plant, so the next logical attempt will be electricity,” said Mary Hodell, a member of Neighbors United, a citizen-awareness group based out of South Heart. “I don’t know what is left.”

Voss said Great Northern and GTL Energy, a company seeking to operate a coal beneficiation plant also near South Heart, are independent companies.

“We are not working together,” Voss said. “We will use their technology in our plant when they build it and prove that it works, but we won’t use their equipment.”

The cost to build Great Northern’s plant is estimated at $1 billion.

“The county does have a comprehensive plan that is in place to protect the livelihood of the people and it would be nice if that was followed,” Hodell said.

Are we going to let them get away with this?  I love it when my hunches are right, but I hate it when anyone has the audacity to propose something so utterly stupid as this.  It will be hard for them to get it up and running… except who has a power plant application ready to rock (except that it’s a joke, but it takes some time to prove that to the PUC)?  Drat… and here I thought Tom would be down in Honduras trying to build Mesaba down there…

Alan Muller, Green Delaware, questioning and commenting at the meeting

Tuesday night, there was a meeting in Delaware City regarding the “Standard Chlorine of Delaware, a/k/a Metachem Superfund Site.”  This meeting was to gather comments on the “OU3 Proposed Plan.”

Here’s a link to the News Journal article about it — and the full story is below:

EPA: Metachem toxins will linger

Comments must be sent in by August 14, 2009, postmarked if mailed by that date, to:

thornton.hilary@epa.gov

Hilary Thornton, Mailcode 3HS23

US EPA, Region 3

1650 Arch Street

Philadelphia, PA  19103

****************************************

Here are my comments, sent just now:

Overland Comments – Metachem

Now, take a few minutes and work on yours!

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The way they handle these proceedings, it’s misleading and diversionary, a false, technical compartmentalization of the problem and solutions, which leads to a preordained, incomplete, and probably ineffective “clean-up.”  Part of the problem is that it’s  not clear that cleaning up is a priority.  My impression is that they’re just interested in “dealing with it” in some way, the CHEAPEST way, checking off the “OU3 box” and moving on.

Their plan, their PREFERRED plan, is to cover it up and move on to “OU4.”  Their “Preferred Plan” is, direct from their powerpoint slide 8:

2A.  Surface Cap/Institutional Controls

Impermeable Surface Cap

• Cap materials TBD during Remedial Design Phase
• Cap materials and thickness would vary depending on future land use

Institutional Controls

• Future land use must not interfere with ongoing remedies

Five-Year Reviews

• Required for any Superfund Site where contaminants remain

Est. $11.5 – 18.5 Million

Why look! Imagine that!   This is the CHEAPEST of the options.  All options are “cap” crap, with “materials TBD” and, based on prior past bad experience with DNREC’s “hare-brained” ideas (yes, that’s a direct quote)for “beneficial use” and using coal ash and sewage sludge to cap the dump next to the river:

• I asked whether they’d use coal ash in the “TBD” cover material, and they would NOT commit to rejecting coal ash.
• I asked whether they’d use sewage sludge in the “TBD” cover material, and they would NOT commit to rejecting sewage sludge.

This is where that compartmentalization becomes a problem.  They said that was not an issue for “OU3” and that it would be addressed in the “design phase.”  Uh-huh, and the public is involved in that exactly HOW?  And hello — WHAT the impermeable surface is has much to do with the appropriateness of using an impermeable cover.  Rainfall on the impermeable cover will trickle off the cover over the edge, onto and into the ground, groundwater, etc.   Even if it’s asphalt, that should be considered.  Isn’t the EPA is in the process of addressing coal ash, and a rule pending?

Cost… Their “preferred” option 2A costs $11.5-18 million.   The others?

The other options, from their powerpoint:

2B Surface Cap/ICs, with Soil Vapor Extraction

Same surface cap and ICs as mentioned in 2A, plus an in Situ SVE system:

• Est. 200-500 air extraction wells at 50′ depth
• Treat contaminated air from beneath the cap
• treat off-gas from SVE system before discharge
• Additional sampling to identify “hot spots”
• Pilot study first, to test effectiveness
• Est. $19.1-20.2 Million

2B Surface Cap/ICs, with ISTD

Same surface cap and ICs as mentioned in 2A, plus in Sit thermal Desorption:

• Est. 2,800 heater and 1,400 heated vapor extraction wells, 8-12′ apart through 330,000 sq. ft. area
• Additional sampling to identify “hot spots” within 10′ of barrier wall
• Pilot study first, to test effectiveness
• Est. $92.8-99.8 Million

Let’s see… $11.5-18.5 v. $19.1-20-2 & $92.8-99.8.  Doesnt’ take a rocket scientist to see that the cheapest “option” is “preferred,” and since when is cost the primary driver?  Is this an indication of how they value those living here, drinking the water, breathing the air?

Oh, and did I mention they admitted, finally, that the contamination goes down at least 140 feet!  That’s something they haven’t wanted to talk about before.

These options are the only ones looked at, the only ones that are under consideration.

CONSIDER THIS: One other option I want them to consider is to dig up part of the site, the cleaner part, and put a liner down there and take the contaminated dirt from the rest of the site and bury it there with the solid multi-layer liner, and then cover it.

Here’s an example of that in Minnesota, showing that it can and should be done.  This is a scenario where it’s been sitting there since before the mid 70s, it has contaminated ground water in Lake Elmo and Oakdale, Minnesota.  They’re using three layers of liner over packed clay and another three layers of plastic, plus sand with a collection and draingae system.  In the Metachem case, they know groundwater is contaminated, that it’s seeping down, so what, short of this, will stop it?  Take a look — Tom Meersman did a very good job on this:

History-making landfill do-over in Washington County

Hazardous 3M trash buried decades ago in Washington County is being dug up and will be reburied with a protective lining.

By TOM MEERSMAN, Star Tribune

In a $20 million job that’s the largest of its kind in state history, workers in protective suits are unearthing trash in Lake Elmo that hasn’t seen the light of day for more than three decades.

Their mission is not to burn the wastes or haul them off to another state, but to rebury them in a state-of-the-art pit that will keep chemicals that went into Scotchgard and other 3M products from getting into any more drinking water.

Excavating 33 acres of garbage, and then putting it back in the same place, may seem like a curious way to handle trash that has rested undisturbed since 1975.

However, the former Washington County landfill is not your typical dump. Wastes taken there from the 3M Co. in the early 1970s have contaminated groundwater in nearby Lake Elmo and Oakdale.

That has led to one of the biggest attempts to go back and undo decades-old environmental practices that the metro area has ever seen.

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