Legalectric

This is just to good to believe. Excelsior Energy’s Mesaba Project is not faring well under the eye of federal agencies, hard to believe, but there it is, in black and white as found in their DEIS Comments. And what’s also too good to believe is that we’ve caught the DOE and Minnesota’s Green Chameleon Gov. Tim Pawlenty’s agency hiding important documents from the public.

First, once more with feeling, the US Army Corps of Engineers:

U.S. Army Corps of Engineers Letter January 31, 2008 and attachments

Now, let’s move on to the Comment of the Environmental Protection Agency. Can this be? They’re gettin’ DOWN! Like WOW!

US EPA Comment on Mesaba DEIS

Here’s the poop in short:

Based on the information provided in the DEIS, EPA has assigned a rating of “EO-2.” The “EO” indicates that we have environmental objections to the proposed project. The “2” indicates that additional information needs to be provided to support the impact analysis documented in the DEIS.

The EPA gives it a thumbs down. There are a number of issues, but in tandem with the USACE, there’s a “project purpose” problem identified and the alternatives scenario is flat out rejected:

The selection of alternatives is etermined in part by the project’s purpose…

This project has four stated purposes, which are to : 1) demonstrate the commercial viability of IGCC technology on a utility-scale application, 2) help satisfy Minnesota’s baseload power needs, 3) implement Mnnesota’s energy poloikcies, 4) and utilize state and federal incentives under the Innovative Energy Project initiative. These four stated purposes are actually a combination of two project purposes and a set of modifiers that specify the applicant’s desired conditions and benefits for the project. The demonstration of the commercial viability of IGCC technology on a utility-scale application (1) is one project purpose that can be accomplished anywhere in the United States, not just in Minnesota. The need to provide additional baseload power in Minnesota (2) is another project purpose, which can be accomplished using a number of different technologies, fuels, and locations within the State. It does not require the use of IGCC technology. The purpose to implement Minnesota’s energy policies (3) is actually a desired benefit from the second project purpose. This benefit cannot be considered as a project purpose because it isn’t associated with an actual project. Lastly, the purpose to utilize staet and federal incentives (4) is a desired condition by the applicant that cannot be considered a project purpose. The economic savings and development benefits associated with these incentives do not define an actual project either.

… therefore, we would, in reviewing the CWA Section 404 permit, reject the project purposes as stated by the applicant and the resulting alternatives analysis up on which it is based.

This Comment was withheld by the DOE and Minnesota’s Department of Commerce. Can you believe???

Just for the record, “purpose” jumped out at me too, and here’s what I said in the MCGP DEIS Comment January 11 2008:

6) The DEIS, in Section 1.4, p. 1-6 to 1-9, improperly shifts the purpose of the project, from that of public need, as framed in the DoC scoping document, to one focusing on project proposer need. EIS must address the public need for the project and eliminate discussion of “project proponent need.”

7) The DEIS, in section 1.4.1.2, provides a narrative regarding the DOE purpose, and it does not include “demonstrate” in line one where the purpose of the DOE’s action is explained. This is a “demonstration” project, mentioned elsewhere, and that is a material term in the purpose of this project.

8) In section 1.4.14 of the DEIS, the State Purpose is addressed. One important omission that must be corrected is the state’s need to provide for public participation opportunities under the Power Plant Siting Act and in the PPA docket.

So now what… how dare they hide documents that are so important… how dare they. The DOE and Minnesota Department of Commerce are in deep, deep shit…

(This is changing and shifting quickly, but I’ll keep adding as it develops, and I think I’ll have a separate post soon for the EPA Comments, they’re that good.)

The nightmare of IGCC – coal gasification takes an interesting twist… very interesting… there’s Comments and correspondence flying around to the DOE and Minnesota’s Department of Commerce about Excelsior Energy’s Mesaba Project. Hot off the press is a MONTH OLD letter to Richard Hargis of the DOE, the one in charge of the Mesaba Project Environmental Impact Statement at DOE. The Department of Commerce was copied on this, as was Bob Cupit from the PUC. But the public? Hey, we don’t exist, why would we want to know about this…

Let’s look and see what they’ve done on the Commerce project site — why, it’s now been published on the site, but it’s hidden in the January 11, 2008 comments, way down at the bottom, scroll down and look in Agency Comments, see for yourself:

MN Commerce Project Docket for Mesaba

There’s also a big long list of EIS Comments on the PUC’s eDockets “Excelsior Energy Mesaba Project Siting Docket” for the Mesaba Project. Click HERE and then search for docket 06-668.

Now, let’s check out the US Army Corps of Engineers (USACE). The USACE filed Comments on the Mesaba EIS on February 21, 2007. Look for US Army Corps of Engineer Comments. Find it? Right… they’re not there. The USACE sent a letter on January 31, 2008, about it, a LENGHTY letter with attachments of Comments of 2/21/07 and others — look for it in the docket. Find it? Right, it’s not there… Well, it will show up because I finally filed it myself in disgust. Oh, and the EPA, the EPA filed Comments in a letter dated January 11, 2008. See it on the MN Commerce Project Docket or the PUC siting docket? Find it? Right.. it’s not there… Do you notice a trend?

Remember the Mesaba Project joke of a siting hearing, held January 29 and 30? And what date was this sent, January 31, the day after it ended??? And it pops up, from a little birdie, a MONTH later? And it’s not published anywhere on the official sites? How dare they… and thanks to the little birdie:

Maybe it has something to do with the nature of the comments, essentially, they’re saying that the MN Dept. of Commerce and the DOE did a piss poor job of the EIS and that it’s not adequate. Yup, they’re saying it sucks. Really sucks!

Here’s their January 31, 2008 letter

U.S. Army Corps of Engineers Letter January 31, 2008 and attachments

This is good stuff. There’s the letter, which notes IN BOLD that an appendix attached to the DEIS, appendix F1, but a different version than the one they’d reviewed, and contains information that “had previously been removed at our request.” Oh, great… and it ends on this happy note:

The Corps also believes that there continue to be several NEPA deficiencies in the DEIS. These are 1) not addressing the alternative of a stand alone Phase I project; 2) not all direct actions are disclosed (e.g., not all wetland impacts appear to be disclosed in the impact tables); 3) not all impacts of connected actions are disclosed (e.g. need for additional high voltage transmission lines beyond the nearest substation); 4) not all impacts due to plant operations are disclosed (e.g., no evaluation of train and truck emissions over the 20 year life of the plant); and 5) an unresolved issue regarding the DOE’s ability to evaluate alternatives to the applicant’s proposed project.

 Mesaba DEIS for your reference

Here are some more choice snippets in the packet that was sent with the letter:

3. Page S-4 second paragraph.  The Corps has requested in prior comments that a “Phase I project only” be evaluated in the EIS.  The DOE had informed the Corps that a phase I only project would not be considered because it isn’t being considered by the Minnesota Public Utilities Commission [SAY WHAT?!?].  However, CEQ 40 questions specifically state that “An alternative that is outside the legal jurisdiction of the lead agency must still be analyzed in the EIS if it is reasonable.”  CEQ 40 questions also states that “In determining the scope of alternatives to be considered, the emphasis is on what is “reasonable” rather than on whether the proponent or applicant likes or is teself capable of carrying out a particular alternative.  In this case, a phase I only project is not outside the legal jurisdiction of the DOE, and can be carried out by the applicant.  Whether the applicant desires a phase I only project, and whether the state is considering this option, are not sufficient to determine this alternative is not reasonable under NEPA.

Yeah, you tell ’em!  “…not being considered by the PUC?”  And they can get away with that as long as that kind of response is not public.

And here’s a hilarious one, coming after Chair Koppendrayer’s famous “Nobody needs it, nobody wants it, and we’re not going to force this on anyone!”

8. Page 1-6 discusses the need for additional baseload power and references documentation in Appendix F1.  Because a reasonable review of the project need is an important part of our public interest review, and several utility companies have prepared and submitted new 2007-2008 resource plans, this information should be updated to reflect current projections.

Now THAT’s funny!  And what a coincidence, it just so happened that I challenged their need statement and attached a link to NSP’s Notice of Changed Circumstance to my DEIS comment — great minds…  see P. 3.

 MCGP DEIS Comment

And then there’s transmission:

12. Page 2-30 Section 2.2.2.4 Infrastructure requirements.  The discussion on the MISO studies is from DOE’s response to our February 07 comments.  What is the current status of the MISO studies?  This information should be updated and reflected in the FEIS.

… and it gets better:

13. Page 2-30-31 Section 2.2.2.4 Includes discussion of the network upgrades that would be necessary (Boswell to Riverton, and full power deliverability to the Twin Cities).  It does not appear that impacts resulting from these actions are discussed or evaluated.

Yup, and that’s a fact!  SNORT!

What’s most interesting about this is the cover letter, which lays out the timeline of various letters and meetings where the Corps has tried to bring the EIS in line with federal requirements, and it’s just not happening, and the frustration is evident in the letter and in the Comments.  It’s also good to see the evolution, with heightened stress on cumulative impacts, and the careful attention to wetlands.

I’ll pick out some more choice snippets, but in the meantime, dig this, just in, the response to my FOIA request!

US EPA Comment on Mesaba DEIS

Yes, the EPA Comment deserves a separate post… I cannot believe… this is Bush’s EPA saying this! Again, I’ll pick out some snippets, but it’s worth reading the whole damn thing. And it’s worth sending an email to Bill Storm and Richard Hargis and asking why they’re hiding this!

meanwhile, the doggies want to go out, and it’s a beautiful day…

IGCC and coal gasification — Excelsior Energy’s Mesaba Project is the bloated and thrashed equine carcass that keeps coming back for more.  The Mesaba Project is still dead…
Whew!  That Mesaba hearing in January was such a farce… some was detailed in a previous post, foreshadowing mostly, and some more here in this post. The transcripts of it have to be read to be believed. They’re in St. Paul, as always, at the Dept. of Commerce, and they’re also, thanks to the efforts of CAMP (Citizens Against the Mesaba Project), in the libraries in Hoyt Lakes and Grand Rapids. Really, it’s worth the drive to check these out. This transcript has, in black and white, some of the most egregious examples of procedural bullshit I’ve ever seen, there really is no other term for it. It’s hard to say what sticks in my craw the most, but I’ve got a few more quotes that I’ll stick below.

I’ve been shaking my head in disbelief for almost a month now, and had to do something, this just couldn’t go unacknowledged, so once the transcripts arrived, I had a little help getting some choice quotes and had a couple of questioners of witnesses eager to do some more questioning so we filed this Motion for Extension of Hearing:

MCGP Motion for Extension of Hearing

MCGP Motion – Affidavit of Muller

MCGP Motion – Affidavit of Rich

Here are some snippets:

—————————————————–p. 20

5 JUDGE MIHALCHICK: Ms. Overland.
6 MS. OVERLAND: Is there an MPCA representative
7 here?
8 JUDGE MIHALCHICK: Is there a what?
9 MS. OVERLAND: Is there a representative of
10 the MPCA here today? MPCA, anyone?
11 JUDGE MIHALCHICK: Nobody is raising their
12 hand.
13 MS. OVERLAND: Shouldn’t they be here?
14 JUDGE MIHALCHICK: I don’t know. That’s their
15 choice.

—————————————————–p. 28-29

9 MS. OVERLAND: I have a procedural issue.
10 Carol Overland for MCGP. I have a procedural issue
11 regarding Mr. Starns’ comments early on. Mr. Starns
12 had made a specific reference to size, type and timing.
13 And under Minnesota Rule 7849.5710, Subpart 4, under
14 issues it says, “Once the Public Utilities Commission
15 has determined the questions of need, including size,
16 type and timing, questions of system configurations and
17 questions of voltage, these issues must not be
18 addressed in the public hearing.”
19 Now, the Public Utilities Commission has not
20 determined the question of need and it has not
21 determined questions of system configuration, questions
22 of voltage. So I wanted to point that out, that this
23 proceeding is exempt — their project is exempt from
24 certificate of need requirements. But there has not
25 been a determination made by the PUC about need or any
1 of these other issues.
2 JUDGE MIHALCHICK: Mr. Starns, do you want to
3 address that?
4 MR. STARNS: Your Honor, because the project
5 is exempt from certificate of need, that’s why size,
6 type and timing are not to be considered.
7 MS. OVERLAND: Your Honor, again, that’s not
8 what the rule says. It says “The PUC has determined,”
9 and the PUC hasn’t determined, they have not.
10 JUDGE MIHALCHICK: In my judgment the statute
11 exempts this project from the certificate of need
12 requirements. In essence, it seems to me that exempts
13 them also under that rule as if — so it should be
14 interrupted as if the commission had determined that.
15 If we did otherwise, we’d be bringing back in a
16 requirement that the legislature said shouldn’t be
17 there. So I think his statement was accurate, Mr.
18 Starns’ statement was accurate.
19 Any other preliminary matters?

—————————————————–p. 308

2 JUDGE MIHALCHICK: We’re going to go back on
3 the record. This is the second session of the public
4 hearings in the matter of the joint applic366ation to the
5 Minnesota Public Utilities Commission for the following
6 pre-construction permits: Large electric generating
7 plant site permit, high voltage transmission line route
8 permit, and natural gas pipeline routing.
9 We’re going to go back, essentially, to the
10 originally scheduled process of doing the Stage 1
11 proceedings at the start of today, meaning the company
12 will call its witnesses and have them testify. If I or
13 the department have any questions, we’ll take those,
14 and then when we’ve completed those witnesses, we’ll
15 move into Stage 2, the public comments and questions.
16 Mr. Starns.

—————————————————-p. 366

2 JUDGE MIHALCHICK: We’re not taking public
3 questions. We’ve changed the process. We’ve gone back
4 to the original process that we’re going to do the
5 Stage 1 portion of the applicant putting in its
6 exhibits or testimony. Then when we’re done with that,
7 we’ll take questions from the public.
8 MS. OVERLAND: Does that mean all the
9 witnesses?
10 JUDGE MIHALCHICK: That’s right. We’re about
11 halfway done.
12 MS. OVERLAND: You mean through the entire
13 list of witnesses?
14 JUDGE MIHALCHICK: Right.

So he rammed through 16 witnesses in one day, it took all day:

Applicant witnesses:

Todd Royer
Thomas Henning
George McVehil
Jeffrey Davis
John Lee
Charles Michael
Kelly Henry
Brad Kovach
Anne Ketz
Bret Johnson
David McKenzie
Robert Mantey
Stephen Sherner
Paul Young
Richard Stone
Bob Evans

In Hoyt Lakes, the gym the hearing was held in was unheated, and Mihalchick made us sit all day through introductions of all those witnesses and it was DAMN COLD, and as Alan got up to start questioning:

15 MR. MULLER: My name is Alan Muller. Before I
16 begin, I’d like to note that Mr. Micheletti is wearing
17 gloves, representatives of the Department of Commerce
18 are wearing gloves. Many people in the room are
19 wearing gloves and overcoats. I don’t know if the
20 rules of the Office of Administrative Hearings call for
21 holding public hearings in heated facilities, but that
22 might be something to consider in the future.
23 JUDGE MIHALCHICK: Nobody is suffering more
24 than I am.

————————————- p. 629-630
16 A. I’m addressing the comments we received.

17 Q. At what point will you —
18 JUDGE MIHALCHICK: I think that’s enough. I’m
19 going to have to ask you, if you want to submit
20 anything more, please do so within the next month in
21 writing. I have one person back here who seems to
22 really want to talk, but maybe not. So I’m going to
23 take some other comments now and then adjourn.
24 MR. MULLER: Okay. Well, I’d like the record
25 to show that I do have more questions for more
1 witnesses.
2 JUDGE MIHALCHICK: Thank you. It will show
3 that.

———————————————-p. 631-632

20 JUDGE MIHALCHICK: Take one more comment. I
21 didn’t mean to have cut off Mr. Muller, but I think the
22 hearing has gone long enough. We’ve got adequate time
23 for the public comment and the company. I’ve extended
24 the public comment period. I certainly invite all of
25 you to submit comments during that time. And I think
1 we’ll close. Is there anything else, any procedural
2 things to wrap up here? Thank you all for coming and
3 enjoy the rest of the winter.

Stolen “Fair Use” from NWS-Shreveport! 

We’re in another of those confusing spots, one that leaves me wondering whether Excelsior Energy had to blow a lot of money on legal fees before the end of the year… it’s hard to find another explanation for the flurry of inexplicable activity zipping through the wires lately (see prior posts, chimp scratching).   Excelsior and Xcel are fighting in the Appellate Court, see Excelsior Appeal – Statement of the Case

And then there’s the Excelsior Energy Petition under Minn. Stat. 216B.1694 where they are saying that the statute says they get transmission associated with the Mesaba Project free and clear, with no requirement of a Certificate of Need, but hey, guys, if the PPA has not been approved, and if the Chair of the Commission is saying “You’ve got to come up with something else,” and “No one wants it, no one needs it, and we’re not going to force it on anyone,” get a grip… there’s NO project, and NO entitlement… give it up…

I couldn’t let that Petition sit like the fart in the elevator so today I filed this:

MCGP Motion to Dismiss Excelsior Energy Petition re: Transmission

Now why might they want to shore up their claim to transmission for a project that doesn’t exist!

Photo soon…

After barely landing from a 1,200 mile blast into Red Wing, I had to head up to Taconite for the Excelsior Energy Mesaba Project DEIS hearing. What a farce, that we’re doing this at all, and all these people had to spend a lot of time reading it, doing comments, when this project is just not happening. GRRRRRRRRRRRRRR.

As I said in my bleary-eyed comments, the most gratifying part of this work is watching people learn and become masters of the information, digging in and finding the truth in the promoters’ techno-speak, and getting it out in public, exposing the problems and questions so eloquently. I love using their own PR nonsense against them. It’s a thrill to hear challenges of the DEIS on sequestration, pipeline costs and impacts, a demand of “zero liquid discharge,” studies of health impacts of PM 2.5 and less, mercury contamination, impacts of 8 kinds of infrastructure through my clients’ yards, it’s like being a proud parent at graduation! These rangers can rip up a “technical report” faster than any Micheletti can spell it!

Here’s the link for the siting docket at Commerce:

Mesaba Docket – Commerce

Here’s the DEIS page, lots of separate links, and it takes a LONG time for the meat of it, Chapter 3, to print.

MESABA PROJECT Draft EIS

Comments are due by January 11, 2008, and they must address substantive comments. Send to:

bill.storm@state.mn.us

or mail to:

Bill Storm

Dept of Commerce

85 – 7th Place E.

St. Paul, MN 55101-2198

And just for yucks, while you’re waiting for it to print out, compare the MESABA PROJECT SCOPING DECISION with the DEIS(scoping decision is on Commerce page, scroll down, issued Sept. 13, 2006). Hmmmmmmmmmmmm… see how things are twisted?

To get to the PUC docket for the PPA, go to HERE TO “SEARCH DOCUMENTS” and search for Docket 05-1993.

==================================================

Here’s Bob Kelleher’s MPR report:

Critics voice concerns at Iron Range power plant EIS hearing

by Bob Kelleher, Minnesota Public Radio
November 28, 2007

The critics ruled at a public meeting for a proposed Iron Range power plant Tuesday. The gathering in the town of Taconite was to hear comments on the draft Environmental Impact Statement for Excelsior Energy’s proposed coal gasification power plant.

Taconite, Minn. — Excelsior Energy’s draft Environmental Impact Statement lays out the major potential consequences of building a $2 billion, 600 megawatt coal gasification power plant in Itasca County.

To be fair, the meeting in Taconite was never intended to be a balanced debate on the electric power project. It was supposed to gather concerns and comments on an 800 page EIS. To hear the people who turned out on a bitterly cold Iron Range night, there are plenty of potential problems the study’s authors overlooked.

Ross Hammond set the tone. Hammond represents the group Fresh Energy – an organization that’s no fan of coal-fired power. Excelsior’s power plant is supposed to be able to capture carbon dioxide from coal. Carbon dioxide is believed a leading cause of global warming.

“It’s ready to capture carbon – carbon dioxide,” Hammond said, “But we’re not going to capture the carbon dioxide. So, if they do not capture carbon dioxide, it’s going to be the second biggest polluter of carbon dioxide in the state, and it’s just going to be an expensive power plant.”

Excelsior officials say they intend to develop carbon capture eventually; but that wouldn’t happen in the early phase of the power project.

But area resident Ron Gustafson doubts it’ll ever happen.

“Excelsior’s carbon capture sequestration plan is merely a conceptual scenario with no established time line, cost estimate, or cost impact analysis to rate payers. It’s a pipe dream,” he said.

The lack of a carbon plan was mentioned by many at the meeting – as were related concerns about a pipeline that could some day take carbon from the Iron Range as far as North Dakota.

Charlie Decker, a doctor from Hibbing, says the Iron Range is the wrong place for the coal gasification power plant.

“It should be build somewhere where the coal is located,” he said. “Somewhere where carbon dioxide can be sequestrated, ‘dumped in the ground’ as the one speaker said, and would not cost a fortune and make the product, as another speaker mentioned, cost prohibitive for sale – and increase the cost of power to consumers.”

Others had worries closer to home. Linda Castagneri worried about exposure to high voltage power lines, and about air pollution, like the kind of small particles that can come from a power plant stack. She says the EIS has no in-depth study of potential respiratory problems.

“If we have adequate funding to fund a high risk demonstration plant, there exists in this country, adequate funding to study properly, and make appropriate comments regarding these health issues,” she said.

No one spoke in defense of the project. The pro-business Itasca Economic Development Group’s Mike Andrews says his organization will take seriously comments to the EIS and draw up a response. In the past, that group has been a strong project supporter.

But Carol Overland hasn’t. The attorney has been a vocal opponent and a party to recent hearings before the Public Utilities Commission. So far, the PUC has refused to mandate Excelsior’s proposed power purchase agreement with Minneapolis based Xcel Energy. Without that agreement, the project can’t happen.

Overland expressed her frustration that EIS meetings are even happening.

“And here we are, you know, wasting our time doing this,” she said as some in the audience applauded. “And I find that really offensive. I’ve been on this project for almost seven years.”

Another meeting on the EIS is tonight in the town of Hoyt Lakes, which is considered a fall back site if the Taconite site gets rejected.

Written comments will be taken through January 11th, and the Public Utilities Commission could be making a final decision on the EIS, and whether the project gets permitted, next May.