Legalectric

Above — the mittens (approximation) the judge was wearing at the hearing, big brown leather — DURING the hearing, yes, it was indeed a cold day in hell…

The “siting” hearing for Excelsior Energy’s Mesaba Project was Tuesday and Wednesday, that’s the long dead IGCC/coal gasification plant that keeps hanging on as we beat that equine’s bloated and stinky carcass. It was bizarre, but it’s hard to tell how far back to go in detailing the bizarreness… and I’m a little cranky, having sat most of the 20 degrees below zero day in an unheated gym attached to the Hoyt Lakes Arena (they couldn’t turn the heat on because when they did, the blowers made so much noise we wouldn’t hear anything but the blowers). The first day went pretty well, we did get through a few witnesses with some good issues raised in the record, so good for our side that the second day the process was shut down. They rammed through all the witnesses through at once, before any public questioning was allowed, and it wasn’t until around 7 p.m. or later that we could get started.

How far back to go… It really started back in Big Stone II, I think, but I’ll stick to this docket for now… First large weirdness in this docket was the ALJ’s Prehearing Order granting intervenor status to Xcel, Minnesota Power, and Public Energy-Mesaba (coalition of groups actively challenging Mesaba), and then there was the Prehearing Order that those not submitting prefiled testimony would no longer be intervenors and could not participate as intervenors, only as members of the public! Really!

Fourth Prehearing Order

In that Fourth Prehearing Order, it was noted that there would be a Phase I and Phase II as provided by Minn. R. 1405.1500:

1405.1500 SEQUENCE OF PROCEEDINGS.

Subpart 1. Recess. All hearings shall recess at 11:00 p.m.
unless the administrative law judge determines that the public
interest will best be served in any given hearing by continuing
the hearing beyond 11:00 p.m. The administrative law judge may,
in the judge’s discretion, order a time and place for a
continuance of that hearing.

Subp. 2. Two-stage hearing. The hearing may be scheduled
in two stages. The first stage shall be for the purpose of
introducing into evidence all of the prefiled direct testimony
of the parties, and the cross-examination of each witness by all
other parties. The subsequent stage shall be for the purpose of
allowing all other interested persons to present their direct
testimony and to question witnesses that offered testimony
during the first stage of the hearing process.

Nothing contained herein shall be interpreted so as to
prevent the public from being present during the first stage of
the proceedings or to question witnesses at an appropriate time
during the first stage of the proceedings, should time allow.
The administrative law judge may give priority to those members
of the public desiring to ask questions which would enable them
to better prepare for cross-examination during subsequent stages.
It is the intended purpose of the two-stage process to establish
specific hearing dates for the primary purpose of public
participation in order to avoid inconveniencing the general
public by requiring them to wait until late at each hearing
before having opportunity to offer direct testimony and ask
questions. However, at the discretion of the administrative law
judge, the applicant and other parties may present a brief
summary of the prefiled direct testimony at the beginning of
each session.

Subp. 3. Additional hearing dates. Nothing contained
herein shall be interpreted so as to prevent the administrative
law judge from establishing additional hearing dates on motion
or at the judge’s discretion.

STAT AUTH: MS s 116C.66; 216E.16

HIST: L 1984 c 640 s 32; 17 SR 1279
Current as of 08/21/07

About this time, I saw trouble coming… So anyway, when Xcel, Minnesota Power and Public Energy-Mesaba did not submit Pre-Filed Testimony, we got the ax, we were out as Intervenors. THERE WERE NO INTERVENORS IN THE EXCELSIOR ENERGY – MESABA PROJECT DOCKET!!! That happened in Prehearing Order 5:

Fifth Prehearing Order

which said, in pertinent part:

4. Because they have failed to file testimony when due, Xcel Energy,
Minnesota Power, and Public Energy—Mesaba are denied further participation as
parties in this matter. They shall remain on the service list and may participate as
members of the public and interested persons as set forth in the First Prehearing Order
(January 19, 2007).

So let’s go back to that First Prehearing Order:

First Prehearing Order

Note the foreshadowing:

3. Any person desiring to become a formal party must file a Petition to
Intervene by February 12, 2007. Any person petitioning to intervene after that date may
be restricted as to the scope of their participation. Any existing party that wishes to
object must file an objection within seven days of service of the petition. Petitions to
Intervene should comply with Minn. R. 1400.6200.

5. Members of the public need not become formal parties to participate in the
hearings. Members of the public may offer either oral or written testimony, may offer
exhibits for inclusion in the record and may question the parties’ witnesses as set forth
below.

7. As suggested by Excelsior Energy, and for the greatest convenience of
the public, the two-stage hearing procedure permitted by Minn. R. 1405.1500, subp. 2,
will be used. In Stage One, the prefiled direct testimony of each party’s witnesses shall
be admitted and those witnesses shall be cross-examined by the other parties. If time
allows, limited questioning by other interested persons may be allowed. In Stage Two,
other interested persons may present testimony and may question the witnesses who
offered testimony during Stage One. Interested persons offering testimony may be
questioned by other persons at the hearing.

In the First Prehearing Order, there were to be days and days of hearings, more than two weeks worth! Given there were 20 or so witnesses, that sounds workable:

April 2-6, 2007 Stage One sessions in St. Paul, Taconite, and/or
Hoyt Lakes

April 9-11, 2007 If necessary, additional Stage One sessions in
St. Paul, Taconite, and/or Hoyt Lakes

April 20-24, 2007 If necessary, additional Stage One sessions in
St. Paul, Taconite, and/or Hoyt Lakes

April 25-26, 2007 Stage Two sessions in Taconite and/or Hoyt
Lakes

April 27, 2007 If necessary, additional Stage Two sessions in
Taconite and/or Hoyt Lakes

But all the Intervenors were eliminated and so was the public vetting and gutting of Excelsior Energy’s Mesaba Project. That got it down to two days… TWO DAYS!!!!!! Twenty witnesses in two days. Yup, great record we’ve got here. So under the rules, Minn. R. 1405.1500, Subp. 3, seems it’s time for a Motion…

Stay tuned… highlights and lowlights of the hearing to follow …

I’ve posted previously about the garbage burner planned for Rock-Tenn and the fight to keep that from happening, lead by Neighbors Against the Burner, a very effective bunch from the surrounding community. Well, it got really hot on Thursday (yeah, old news, that’s how it goes…), hot in a different way:

Fair Use photo stolen from WCCO…

Rock-Tenn fire caused $500,000 damage
BY MARA H. GOTTFRIED
Pioneer Press
Article Last Updated: 01/18/2008 06:21:05 PM CST

The two-alarm fire at Rock-Tenn Co. in St. Paul on Thursday caused $500,000 in damage, the St. Paul fire marshal said today.

Fire investigators have narrowed the cause of the fire, but it remains under investigation, said Fire Marshal Steve Zaccard. It wasn’t intentionally set, he said.

At the state’s largest paper recycler, work has continued elsewhere at the 42-acre site and will soon resume at the site of the fire, said Rock-Tenn general manager Dave Briere.

No workers were injured in the fire at Rock-Tenn, near Interstate 94 and Vandalia Street. More than 40 firefighters fought the blaze.

Throughout this garbage burner fight, Rock-Tenn is claiming to be a “victim” of MERP, the Metropolitan Emissions Reduction Project (plan? p???), which was the means of shutting down coal at Xcel’s Riverside and Highbridge plants.

Anyone involved in MERP knows full well that loss of steam at Highbridge was NOT an unknown, and Rock-Tenn sat on its hinder, thumb or head implanted, and did nothing, NOTHING, as MERP went through a long negotiation and PUC docket, not exactly a private proceeding, and Rock-Tenn was certainly discussed. And now here they are, begging at the public trough, expecting taxpayers to subsidize their business by building them a steam source, and by financing a District Energy expansion into the eastern edge of St. Paul… say what??? Why? THEY DIDN’T EVEN BOTHER TO INTERVENE IN THE MERP DOCKET!!! This whining “victim” stance is very odd… the basic legal word for their “problem” is “laches,” the “you snooze, you lose” theory. Rock-Tenn is trying to turn it into a “you snooze or you sit back, feet up, and YOU WIN THE SUBSIDY LOTTERY!!!” I don’t think so. “STRANDED COSTS?” Over my dead polar bear! Here’s what they tried in 2004, and thankfully it didn’t prevail, but it gives an indication of the extent they’re willing to go to get that big subsidy:

From the Senate Briefly, March 26, 2004:

Anderson also authored a bill, S.F. 2854, providing for the recovery of stranded costs by thermal energy customers adversely affected by the Metropolitan Emissions Reduction Program. Representatives of the Rock-Tenn Company, which manufactures 100 percent recycled paper board and buys steam from the High Bridge plant in St. Paul, outlined their needs and the investments they have made in their business and a steam line between the High Bridge plant and their facility, which is located in the Midway area of St. Paul. About $20 million of costs will be stranded when the High Bridge plants converts from coal to natural gas, said Larry Schedin, an engineer. Rock-Tenn Vice President Jack Greenshields said the company intends to build a biomass power generation facility on its manufacturing site. Chris Clark, Xcel Energy, said the bill is the wrong way to solve Rock-Tenn’s problem. The company’s contract to buy steam is with NRG, not Xcel, Clark said. Xcel ratepayers should not bear the burden of paying for Rock-Tenn’s loss, he said. Beth Goodpaster, Izaak Walton League, said the bill sets an inappropriate precedent for the use of emissions reduction riders. Stranded cost recovery usually involves a taking by the state, Ourada said, but the emissions reduction plan is a voluntary action undertaken by Xcel. Rock-Tenn made a business decision to buy steam from a third party, he said. However, Anderson said the state helped along the process leading to the conversion of the High Bridge plant. A motion to advance the bill failed on a 6-6 tie.

This wasn’t just in the Senate, S.F. 2854, there was also a House bill, H.F. 2823:

S.F. 2854, authors Anderson; Pappas; Larson; Hottinger (Gaither removed his name as author)

H.F. 2823, author Hausman (referred to Regulated, but no hearing)

The bill would have added the following language to 216B.1692, Subdivision 5, and renumbered subsequent paragraphs:

(2) allows a thermal energy customer of a facility subject to a qualified emission reduction project to recover stranded costs caused by the qualifying emissions reduction project;

and the 2003 “Prairie Island” bill, Laws 2003, First Special Session Chapter 11, article 3, section 12, would have been amended, adding:

Minnesota Statutes, section 216B.1692, subdivision 5. Such costs must also include amounts to be reimbursed to a thermal energy customer of a facility subject to this primary metropolitan emission reductions proposal for recovery of stranded costs under the rider caused by the qualified emission reductions project pursuant to Minnesota Statutes, section 216B.1692, subdivision 5. Such stranded costs include, but are not limited to, recovery of costs incurred in connection with the construction and other required capital improvements to the steam production facilities that are subject to a qualifying emissions reduction project which provides steam service to such thermal energy customer and to the steam delivery pipeline used to deliver steam from the steam production facilities to the thermal energy customer. The commission shall verify and approve the amount of stranded costs to be recovered under the rider.

Thankfully this didn’t get anywhere. Whatever were they thinking?

Note Larry Schedin weighing in on this. He was “The Environmental Organizations” expert witness in the SW MN 345kV line, a former Xcel employee, probably back in the NSP days. He’d worked on the 345kV ring around the metro area! Here’s his testimony for the Minnesota Chamber of Commerce in the Rate Case. He was also involved in the 2004 Wind Integration Study.

The South Dakota Supreme Court has issued its Opinion — essentially that the Big Stone II approval by the PSC was not “clearly erroneous.”  Yup, that’s the standard for administrative actions and so that’s where that’s at.  Read it here:

SD Supreme Court – Big Stone II Opinon

Here’s the latest – Excelsior Energy’s appeal of the PUC-nondecision on its Mesaba Project IGCC plant was tossed out, one more nail in the Excelsior coffin!  “This appeal is dismissed as premature and not taken from a final agency action.”  That’s one.  AND, they were also tossed out on their request for discretionary review!  TWO NAILS!

Excelsior Appeal Decision A07-2305

Excelsior Appeal Order A07-2306

How many nails does it take?  We’ll see, because we’ll just keep hammering and hammering.

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!