Albert Lea, MN — Last night was the Dept. of Commerce information meeting where Commerce collected comments concerning (love alliteration, eh?) the Draft Site Permit it’s putting together for the Freeborn Wind Project.

For the Public Utilities Commission docket on this project, go HERE and then search for docket 17-410.

Before heading over to the meeting, I filed this Motion for Certification and Petition for Task Force and Scientific Advisory Task Force.  Because this is the first contested case for a wind project siting docket in Minnesota, and because we’re operating under Minn. R. ch. 1405 Power Plant Siting Act for procedure, and because the wind siting chapter, Minn. Stat. 216F, specifically exempts wind from MOST of the Power Plant Siting Act, but specifically not 216E.08 which authorizes Task Forces, and most importantly, because there are material issues of fact about which Task Forces could help build the record, this is oh-so-important.  Let’s get going on it!

The place was packed, and many more came in after I took this photo, it was standing room only.

And folks didn’t come only for the treats (great treats by the way, especially for this camper working in an office in the woods!).  One man was very upset early on, jumping in during Rich Davis’ presentation, riled because he did not get notice about this project until it had already been applied for.  This is a legitimate issue, and because there was no Certificate of Need, there was no legal requirement that notice be provided until after the application had been accepted as complete.  He stormed out, not wanting to sit through all the “blah-blah” at the front end of this meeting (it did go on and on and on).

Rich Davis’ presentation did include some process explanation that was more specific about what comprises a contested case than that provided by PUC’s Mike Kaluzniak (the latest “Public Advisor” quit, and they’re looking for someone again).  They never want to talk about “Intervention” and explain how people can become parties and when the deadline is to decide and file.  They didn’t talk about the public comment period after the public hearing or include that in the powerpoint.  They didn’t talk about the opportunity to file exceptions to the report of the Administrative Law Judge.  etc… GRRRRRRR. And because this case is an odd one, the first contested case for wind, we’re in need of procedural guidance, what there is, and there is much that is known and which needs to be disclosed.

The Association of Freeborn County Landowners was there, filled the room, and did a tremendous job.  Very specific comments, most with documents supporting their comments.  Like wow, for the first time out the gate, very impressive.  Keep up the good work!

Here’s the handout I’d passed around:

How 2 Comment on the Freeborn Wind Project

COMMENTS ARE DUE OCTOBER 9, 2017

Comments by mail or email – again, due by 4:30 October 9, 2017:

Richard Davis                     richard.davis@state.mn.us

MN Dept of Commerce

85 7th Place East, Suite 500

St. Paul, MN 55101-2198

Or better yet, eFile in PUC’s eDockets system so everyone can see and consider your comment (otherwise they end up in a big long bundle of a pdf with everyone else’s comments), again, due 4:30 October 9, 2017:      

Register:  https://www.edockets.state.mn.us/EFiling/  Registration is easy and fast. Then follow prompts to eFile!

What was best about last night’s meeting is that the comments were specific and on point.  I have 17 pages of notes, single spaced, and close to carpal tunnel from writing it all.  Way to go, folks!!  Meeting minutes will be posted on the Commerce site sometime soon, and I’ll post.

Also, soon the ALJ’s Scheduling Order/First Prehearing Order will be issued, and I’ll also post the official schedule here.

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Also, although in 1995 the legislature specifically exempted wind siting from the Power Plant Siting Act, some sections DO apply, including the criteria for siting, now Minn. Stat. 216E.03, Subd. 7:

Subd. 7.Considerations in designating sites and routes.

(a) The commission’s site and route permit determinations must be guided by the state’s goals to conserve resources, minimize environmental impacts, minimize human settlement and other land use conflicts, and ensure the state’s electric energy security through efficient, cost-effective power supply and electric transmission infrastructure.

(b) To facilitate the study, research, evaluation, and designation of sites and routes, the commission shall be guided by, but not limited to, the following considerations:

(1) evaluation of research and investigations relating to the effects on land, water and air resources of large electric power generating plants and high-voltage transmission lines and the effects of water and air discharges and electric and magnetic fields resulting from such facilities on public health and welfare, vegetation, animals, materials and aesthetic values, including baseline studies, predictive modeling, and evaluation of new or improved methods for minimizing adverse impacts of water and air discharges and other matters pertaining to the effects of power plants on the water and air environment;

(2) environmental evaluation of sites and routes proposed for future development and expansion and their relationship to the land, water, air and human resources of the state;

(3) evaluation of the effects of new electric power generation and transmission technologies and systems related to power plants designed to minimize adverse environmental effects;

(4) evaluation of the potential for beneficial uses of waste energy from proposed large electric power generating plants;

(5) analysis of the direct and indirect economic impact of proposed sites and routes including, but not limited to, productive agricultural land lost or impaired;

(6) evaluation of adverse direct and indirect environmental effects that cannot be avoided should the proposed site and route be accepted;

(7) evaluation of alternatives to the applicant’s proposed site or route proposed pursuant to subdivisions 1 and 2;

(8) evaluation of potential routes that would use or parallel existing railroad and highway rights-of-way;

(9) evaluation of governmental survey lines and other natural division lines of agricultural land so as to minimize interference with agricultural operations;

(10) evaluation of the future needs for additional high-voltage transmission lines in the same general area as any proposed route, and the advisability of ordering the construction of structures capable of expansion in transmission capacity through multiple circuiting or design modifications;

(11) evaluation of irreversible and irretrievable commitments of resources should the proposed site or route be approved; and

(12) when appropriate, consideration of problems raised by other state and federal agencies and local entities.

(c) If the commission’s rules are substantially similar to existing regulations of a federal agency to which the utility in the state is subject, the federal regulations must be applied by the commission.

(d) No site or route shall be designated which violates state agency rules.

(e) The commission must make specific findings that it has considered locating a route for a high-voltage transmission line on an existing high-voltage transmission route and the use of parallel existing highway right-of-way and, to the extent those are not used for the route, the commission must state the reasons.

This is the criteria that we need to focus on when presenting issues, testimony, comments, briefs and exceptions to the ALJ’s report.

More coming soon!  In the meantime, it’s time to break camp and head out!  Myre-Big Island is a great park. Though the bathroom/showers at the Big Island campground suck, they’re superb at the other campground in the park (White Fox). Yes, posted a campground review, inquiring minds need to know where the good state park bathrooms are!

Here’s the view right across the road night before last, the site is fronting the lake:

Freeborn Wind Application HERE!

September 15th, 2017

For all of you planning to comment on the Freeborn Wind application, whether at the meeting Thursday (September 20) in Albert Lea or in writing, here is the Application and appendices to review.  Remember that for your comments to carry any weight, they need to be specific about what is and is not in the application and what Commerce needs to address in its Draft Site Permit.  Focus!!!

Siting_Initial Filing_Application_Narrative_20176-132804-01

Siting_Initial Filng_Figures1-17_20176-132804-02

Siting_Initial Filing_App A_Agency Correspondence

Siting_Initial Filing_App B_Noise analysis20176-132804-04

Siting_Initial Filing_App C_ShadowFlickerAnalysis_20176-132804-05

Siting_Initial Filing_App D_TelecomReports_20176-132804-06

Siting_Initial Filing_App E_MarketImpactAnalysis_20176-132804-07-1

Siting_Initial FIling_App F_Tier3WildlifeStudies_20176-132804-08

Siting_Initia lFIling_App G_Tier1&2_20176-132804-09

Siting_Initia lFiling_App H_AvianBatPPDraft_20176-132804-10

The Minnesota part of the Freeborn County wind project is the site in red, above.

The Association of Freeborn County Landowners has been granted intervention, we’re a party!!!

Order-Intervention-AFCL_20179-135455-01

And a footnote for those wonks interested in Minnesota Rules and OAH and Public Utilities Commission procedure:

For more information about this docket, the application and the filings thus far, go HERE and search for Public Utilities Commission docket 17-410.

I found my notes!!  On August 29, 2017, Alan and I went to the Goodhue County Courthouse for the GreenMark Solar v. Wacouta Township (Court Case No. 25-CV-17-1462) festivities — a Summary Judgment hearing.

FULL DISCLOSURE: I’m not a fan of any of the principals of GreenMark, Mark Andrew, Dennis Egan, and Julie Jorgensen.  Mark Andrew is a former Hennepin County Commissioner and a fan of burning garbage. Here’s a thread from the Mpls yak-yak list about Andrew when he was running for Mayor.  Dennis Egan, well, we had a few go rounds when he was Mayor of Red Wing AND was executive director of Minnesota Industrial Sand Council, and at the time silica sand mining issue was on agenda for City of Red Wing. Julie Jorgensen? Her Excelsior Energy Mesaba Project coal gasification plant took up 5 years of my full-time labor before it went to part-time and intermittent, and still just won’t fully go away! Minn. Stat. 216B.1694, Subd. 3(b)(1)(ii).

That said, I’m also a big fan of solar, from way, way back when my father designed the solar on the Minnesota Zoo (that was later taken down, it was hot water! Not quite what was most needed, and they didn’t know much about solar back then).

Here’s the GreenMark Complaint — couldn’t find the Wacouta Answer or the cross-motions for Summary Judgment. The Wacouta Township website is years out of date — what’s up with that?  (2014 is most current minutes, plus a notice of the May 2017 meeting about the solar project. ???)

Greenmark Solar v. Wacouta Township_Complaint 25-CV-17-1462

Here are a couple articles:

GreenMark Solar challenges Wacouta Township | Republican Eagle

Minnesota Developer Sues for Solar Garden Permit

The oral argument started with Greenmark.  Some points (not all inclusive):

Focus on Minn. Stat. 394.33, Subd. 1, that the township decision violates Town Powers Act. It’s inconsistent with their zoning. They can enact more restrictive zoning, but they didn’t, township has no solar ordinance.2

Township ordinance is ambiguous.  Frank’s Nursery case — if ambiguous, allow property owner to do what they want with the property.

“Agricultural community” — Planning Commission and Board selected different definitions.  Current use, peat mining and hay.  Pollinator scale 45, and 85 with solar.  Wetlands. Reduce carbon emissions.

Township argument:

Town Power Act does not restrict township actions. Bergen defines inconsistent, it’s not different.
Township Ordinance, Art. 3, Subd. 10, limits industrial uses that do not support agricultural. Solar is an industrial use. Twp. does allow solar in ag, BUT, it’s more restrictive, and it’s not inconsistnet.

The standard is whether down decision was rational, i.e., legally sufficient, supported by record.

Reasonable — inconsistent with agriculture, exported to the grid. CUP – exported, GreenMark takes issue with def of ag use, but see “Hubbard Broadcasting” denial of Conditional Use.  Review is deferential.  Mandamus (GreenMark’s action) review not to challenge discretionary decisions of local government.

Frank’s Nursery re: ambiguous ordinance, doesn’t require ordinance to be construed to support use. Court still needs to determine rationality.

Greenmark Rebuttal

Mandamus – this is about building permit, a ministerial act, not discretionary.

Does township even have jurisdiction/authority.

Purpose of project — Goodhue County, that’s the area.

Altenberg (?) – Town Powers Act – Twp didn’t adopt a more restrictive ordinance.

Bergum (?) – legislative intent of Town Powers Act.

Township Rebuttal

Cases of Mandamus for building permits

Goodhue – zoned agricultural, township couldn’t zone industrial, that would be inconsistent with county zoning.

__________________________

Judge Bayley said he has a lot of homework to do, and will do it and issue Order.

Last night, the Red Wing Citizens Assembly report was presented to the Red Wing City Council:

Red Wing Citizens Assembly Event Report

The video isn’t posted yet, though last night’s Library Board meeting is.  ???  Will post that video when it shows up.

I’d had a particular issue that I want addressed in Red Wing, that of ethics in government, particularly development of a culture of ethical behavior, where people would raise whether there are conflicts of interest voluntarily, and these potential conflicts are sufficient to recuse from discussion and votes on an agenda item/issue.  What’s happened that I’ve observed in this town is that there’s no recognition or acknowledgement of conflicts, and it takes harsh exposure, press coverage, and resignation.  It doesn’t need to be that way, especially in a small community where there are so many ties, conflicts are to be expected, and the City needs to learn how to handle them.

Letter: Strengthen the city Code of Conduct

As a member of the Red Wing Citizens Assembly, I’m thinking more formally about public policy. As frequent participants in local issues, representing groups and members of the public, and as individual residents, Alan and I are particularly interested in Red Wing’s Code of Conduct. It’s a company town in many ways, with undue corporate influence.

Compared to that of the Public Utilities Commission where I practice (Minn. R. Ch. 7845), Red Wing’s Code of Conduct is inadequate. Under PUC Code, commissioners “shall behave in a manner that promotes public confidence in the integrity and impartiality of the commission’s decision-making process,” and prohibits “… any action that might result in or create a conflict of interest or the appearance of impropriety… .” Red Wing’s Code gives too much wiggle room.

Remember removal of Mayor Dennis Egan? Why was resignation even a question given the direct conflict of interest and sand issues on the city agenda at the time?

How many City Council members are financially connected to Xcel Energy, as employee, contractor or with business ties? Xcel matters are regularly before the council, i.e., LabUSA “ash mining” (Full disclosure: I represented in limited scope neighbors challenging that project), nuclear issues, utility personal property tax revenue, and the city’s legislative agenda. How does the city balance Red Wing’s interests with Xcel’s interests?

3M/Capitol Safety agreed to create 40 new jobs in exchange for a $500,000 state MIF Loan and $284,677, 100 percent city tax abatement, for the new building. 3M didn’t comply by the deadline, nor within the three-month grace period, and now they’re six months overdue. The public is paying over $19,000 per job, Red Wing’s share over $7,000 per job. The council granted an extension without penalty, with no disclosure of how many jobs 3M fell short. 3M is moving jobs around — why not to Red Wing? Shouldn’t tax be assessed during noncompliance, not abated? An “extension fee” of at least $19,000 per job not created by the deadline? How is extension, with no consequence, in the public interest?

These are just a few examples. A few thoughts for improvement:

• The Red Wing Code of Conduct should require full disclosure of employment and contracting ties, in campaign information and city website biography. For each agenda item with a potential conflict, council and commission members should be queried via roll call about conflicts and interests with their response on the record.

• The administrator’s council packet should review for each agenda item the “city interest,” “applicant interest” and “public interest” for consideration.

• The Code of Conduct should require full disclosure and recusal from discussion and decision of any council or commission member who is employee or contractor or has business dealings with a party to an agenda item.

• The City Council needs education on fiduciary responsibility, protection of city resources and public versus private interest.

City of Red Wing, revise the Code of Conduct. Give it some teeth.

Carol A. Overland and Alan Muller

Red Wing