Legalectric

We know who you are, and we saw what you did… and didn’t!

No surprise.  Today the Minnesota Public Utilities Commission rejected Goodhue Wind Truth’s Petition for Reconsideration of the Commission’s denial of our Petition for Rulemaking.  Rules, who needs rules… about 2,500 MW of wind has been sited in Minnesota WITHOUT LARGE WIND SPECIFIC SITING RULES AND/OR STANDARDS!  Really!  And the Commission doesn’t seem to regard that as a problem.  Large wind is sited using SMALL WIND/COUNTY SITING STANDARDS, not intended for large wind.  And the Commission doesn’t seem to regard that as a problem.  Large wind is sited using MPCA’s industrial noise standards which were admittedly NOT designed with wind in mind.  And the Commission doesn’t seem to regard that as a problem.  Large wind is sited using a Commerce boilerplate site permit with 1,000 foot setbacks and staff has no idea where that 1,000 foot setback came from (it’s contrary to even the small wind standards, and there’s no rule or standard of 1,000 ft!).  And the Commission doesn’t seem to regard that as a problem.

GWT_Reconsideration_FINAL

Here’s the rest of the background information:

I often use this photo, because it represents one simple fact: Sometimes things go off the rails.  Wind siting in Minnesota is one of those things, we have no wind specific siting criteria!

Thursday, December 6th, we’re back at the Commission, where they’ll address Goodhue Wind Truth’s Petition for Reconsideration, or not (and toss it in the circular file).

PUC Notice – Agenda Meeting 12-6-2018

It’s worth taking a look at the Freeborn Wind transmission docket (PUC Docket 17-322). To check it out, go to eDockets and search for 17 (year) 322 (docket number).  Obviously the Commission’s decision is a problem here, and as we’re awaiting the written order, I’m pondering.

There’s a statute that applies to wind proceedings, specified expressly in the “Exemptions” statute  as part of the Power Plant Siting Act that DOES apply.  That’s found here:

216F.02 EXEMPTIONS.

(a) The requirements of chapter 216E do not apply to the siting of LWECS, except for sections 216E.01; 216E.03, subdivision 7; 216E.08; 216E.11; 216E.12; 216E.14; 216E.15; 216E.17; and 216E.18, subdivision 3, which do apply.

Note the seafoam green Minn. Stat. 216E.08:

Subd. 2.Other public participation.

The commission shall adopt broad spectrum citizen participation as a principal of operation. The form of public participation shall not be limited to public hearings and advisory task forces and shall be consistent with the commission’s rules and guidelines as provided for in section 216E.16.

Check out the first and only Prehearing Order issued by the ALJ:

20184-141685-01_PHO

To call it “minimalist” is too generous…  What does it say about public participation?  Where’s the boilerplate information about intervention, about participation and being a “participant,” etc?  M-I-S-S-I-N-G…

Here’s the siting docket’s Prehearing Order #1 as an example – see the difference?

Prehearing Order 1_20179-135781-01

Association of Freeborn County Landowners showed up on September 20, and let the ALJ know in technicolor what we thought, raised many issues in detail, and later submitted written comments, together with the written comments from many members, including information about land where Freeborn Wind was attempting to route over non-participants!

Before the hearing started, I’d approached the ALJ and requested that he swear people on oath or affirm, and he said something to the order of “I remember you” having requested that before.  He didn’t want to put people under oath.  I reiterated that I’d been present, twice, at Commission meetings where Commissioners asked if specific testimony had been provided under oath, and that the rules provide it as an option, so I want to assure that’s not an issue.  The ALJ was not happy but essentially agreed to swear people in if so requested.  AAAAAAAAAAAAAARGH!

Minnesota Rules include swearing in as a duty of the ALJ:

1400.5500 DUTIES OF ADMINISTRATIVE LAW JUDGE.

Consistent with law, the judge shall perform the following duties:

…  F. administer oaths and affirmations;

That’s a “shall.”

Minnesota Rules have many provisions regarding being sworn in, and regarding testimony regarding “a fact at issue” in a contested case hearing:

All evidentiary testimony presented to prove or disprove a fact at issue shall be under oath or affirmation.

Minn. R. 1400.7800(g).  That’s a “shall.”  Here are a few citations regarding witnesses, oath/affirmation, and facts:

1400.7200 WITNESSES.

Any party may be a witness and may present witnesses on the party’s behalf at the hearing. All oral testimony at the hearing shall be under oath or affirmation. At the request of a party or upon the judge’s own motion, the judge shall exclude witnesses from the hearing room so that they cannot hear the testimony of other witnesses.

1400.7800 CONDUCT OF HEARING, Subp. G.  Any party may be a witness or may present other persons as witnesses at the hearing. All evidentiary testimony presented to prove or disprove a fact at issue shall be under oath or affirmation.

1405.0800 PUBLIC PARTICIPATION, Subp. B.  … However, testimony which is offered without benefit of oath or affirmation, or written testimony which is not subject to cross-examination, shall be given such weight as the administrative law judge deems appropriate.

Oath?  Affirmation?  This is not something anyone should have to push about…

Every Association of Freeborn County Landowner participant requested to be sworn on oath and was.  Not one of the witnesses speaking in support of the project requested to be sworn on oath.

AFCL also filed extensive written comments:

AFCL_TransmissionComments_FINAL

Here’s the ALJ’s Recommendation, filed July 26, 2018:

20187-145230-01_Freeborn ALJ Recommendation

Looking at this recommendation, how are comments from the public laid out?  How are the many substantive comments of AFCL members and project opponents positioned against the few, and with few exceptions, the comments of supports that had no content? Search the Recommendation for “AFCL” and/or “Association of Freeborn County Landowners” and what do ya get?

20187-145230-01_Freeborn ALJ Recommendation

Another point — do you see anywhere the boilerplate language regarding opportunity for any affected party to file Exceptions?  Yeah, this language (example from Docket 17-568):

Notice is hereby given that exceptions to this Report, if any, by any party

adversely affected must be filed under the time frames established in the Commission’s

rules of practice and procedure, Minn. R. 7829.2700, .3100 (2017), unless otherwise

directed by the Commission. Exceptions should be specific and stated and numbered

separately. Oral argument before a majority of the Commission will be permitted

pursuant to Minn. R. 7829.2700, subp. 3. The Commission will make the final

determination of the matter after the expiration of the period for filing exceptions, or after oral argument, if an oral argument is held.

20188-145717-01_AFCL_Exceptions

Details 2018-190

It’s that time of year again, and for a change, no reminder necessary, AND it’s in 2018, not crammed in at the very end of year or beginning of next!

It’s the POWER PLANT SITING ACT ANNUAL HEARING!

This is our opportunity, as those wrestling with the state’s siting laws and rules, and absence thereof, to tell them what does and doesn’t work.  Then the Administrative Law Judge files the report and it’s ignored for another year.

Frustration with lack of response was what triggered the multiple rulemaking petitions I’ve filed, on my own as individual, and representing Goodhue Wind Truth, most recently:

Wind Rulemaking — Petition for Reconsideration

We used to have a pot-luck for the PPSA Annual Hearing, until the PUC put the kibosh on that.  GRRRRRR!  Treats is the best way to get people to show up.

Now’s the time, show up, spout off, and tell them what works and what does not.  And note that aspects of the Power Plant Siting Act DO apply to wind:

216F.02 EXEMPTIONS.

(a) The requirements of chapter 216E do not apply to the siting of LWECS, except for sections 216E.01; 216E.03, subdivision 7; 216E.08; 216E.11; 216E.12; 216E.14; 216E.15; 216E.17; and 216E.18, subdivision 3, which do apply.

Greetings from my office in Myre-Big Island State Park!  It’s the perfect place for a client meeting, and a meeting with a local attorney, drafting a Petition for Reconsideration… nothing like having a fully equipped office with wheels!  The downside is that there’s a season where it works, and a season where it doesn’t — for sure it does not work in the dead of winter.

We’re getting to the end of the season, it came to an end too quickly.  There was about an inch of snow here, it rained/sleeted/snowed all night Friday and all day Saturay.  Sunday morning people cleared out of here like it was on fire.  Our furnace and little heater kept up well, and one down comforter was sufficient!

Cooking was kinda rough the first two days, but washing dishes was worse!  Then today arrived and the sun was out and it was beautiful!

Sadie got to play with her “cousin” Sandie at the dog park two days running, and she was a happy, pooped, and socialist puppy!  They’re getting along quite well, but Sandie is… well… a PUPPY!  She’s now bigger than Sadie, plump and jiggly, whereas Sadie is for sure greyhound style.

Got to see little bro’s “new” house, and, well, it’s a good thing he didn’t get the first one he told me about down there, Hwy 13 in Hartland, right near Bernie and Cheryl Hagen and right in Bent Tree!  DON’T YOU DARE!  I sent Alan and Sadie out to play while I was writing, and there was some serious bonding going on the first day at the dog park and Home Depot.  A few mods to the camper, we now have two more stable tables, and a new outlet where the camper was designed for an air conditioner plug, so running little electric heater and oven or tea kettle at the same time is no problem.  One less thing to think about.  It was odd, there were two circuits, everything was on one, and nothing on the other, but all set up and ready to run, just needed an outlet. Who needs an air conditioner, particularly in a camper!  But we all need another outlet, eh?

Only one more meeting to go, and then homeward bound!