Legalectric

Yesterday Neighbors Against the Burner filed this Petition to Intervene in a docket at the PUC where Xcel Energy has filed a request for approval of a Power Purchase Agreement slashing the rate paid to Hennepin Energy Recovery Center – HERC for electricity generated at the HERC garbage burner:

Neighbors Against The Burner_Cover-Notice of Appearance -Petition to Intervene

Check out the Public Utilities Commission docket:

Click “Search Documents” HERE and search for docket 17-532

Here’s the Neighbors Against the Burner page for HERC:

HERC page and links via Wayback Machine

And check out Alan Muller’s powerpoint from the successful challenge to attempt to increase garbage burning:

HERC_Power Point

There was an announcement in April, 2016, of  the “HERC Clean Power Plan Coalition” with multiple groups joining to shut down HERC!  Sierra Club North Star Chapter, MPIRG, Neighborhoods Organizing for Change, Community Power, St. Joan of Arc, etc.  HERC has been raised as an issue in this fall’s Minneapolis Mayoral election. 

Now’s the time to get it done!  SHUT IT DOWN!

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 The Wacouta Township website is years out of date — what’s up with that?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.

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Xcel Energy’s Hiawatha Transmission Project moves forward.

Recently, Comments and Reply Comments were due in this “informal” Certificate of Need proceeding.  All the intervening parties in the routing docket have been sitting on their hands, or worse (I hope not, but why the silence?).  So when only MOES filed “Comments” I filed Reply Comments, because theirs were SOOOOO… soooooo… well, read them yourself, they’re in INITIAL comments recommending that the Certificate of Need be approved, shouldn’t they at least make it look better by waiting to see what comes in before declaring that it should be approved?!?!?!  … and the basis, well, it’s just absurd:

MOES – Comments and Recommendation

Here’s what I filed — I don’t have a dog in the fight, no client, no direct interest, but I cannot stand it when there’s NO response, NO filings, it’s just not right, and that’s when I get twitchy that somebody is pulling a fast one, and others did join in:

Overland Reply Comment

Johnson Reply Comments

Johnson – Reply Comment Attachment

City of Minneapolis and Hennepin County Reply Comments

Suburban Rate AuthorityReply Comments – LATE

Xcel Reply Comments

And then MOES has the last word, complaining that Xcel’s aren’t allowed under the PUC Rules of Practice in Minn. R. ch 7829!

MOES Comments and Recommendation

WE WON A SMALL WIN — A START ON PREVENTION OF EXPANSION OF HENNEPIN COUNTY’S HERC BURNER!

Now and then, it sure helps to win, and Neighbors Against the Burner is on a roll here!

Here’s Alan Muller, testifying about specifics, noting that the areas of greatest concentration shown in the “ballpark EIS” were NOT in the ballpark, and the City has not addressed these impacts in any way:

Muller’s HERC Plume cover letter

Plume Predictions from 2007 baseball stadium EIS

In the meantime, here’s his letter to the Commission prior to the last meeting with a graph showing emissions:

Muller – HERC letter

Rep. Karen Clark came in to testify about her opposition to the project, citing the impacts of pollution on Hennepin County, armed with graphic graphics showing how bad the situation is already, and testified about specific impacts in her district, the Phillips neighborhood, particularly arsenic impacts, and other harmful pollutants.

Rep. Frank Hornstein also testified against the project, as did John Schatz, Leslie Davis, and the most bizarre HERC cheerleading twit, Mary deLaittre, who has actually written THIS (be sure to check the links.. “unique waste to energy facilities, oh pleeeeeze, pass the barf bag)– PARAGRAPH BELOW IS LINKED TO SITE:

A HERCulean effort

Because repetition is our friend, we feel the need to re-visit HERC (Hennepin Energy Recovery Center) and extol its virtues again. We sense that many have been missing the forest for the trees with respect to our pal HERC. HERC is a neighborhood amenity that provides an invaluable community service by disposing of 356,000 tons of garbage a year for Hennepin County. This garbage is converted into enough electricity to power 25,000 households, or 1/5 of all the residences in Minneapolis. Not only is it a 24/7/365 powerhouse, it is also a green building, to boot. Powerful as it is, HERC could do even more. HERC’s operators cite the plant’s unused capacity, and desire to contribute additional steam/water heating and cooling for the North Loop neighborhood. Like any building over 20 years old, it needs a bit of updating. A proposed makeover by Hennepin County and Covanta Energy, originally designed by students from the University of Minnesota, shows how the building and grounds could be transformed. So, as a city that touts itself as being green and wanting to be more sustainable, we should be celebrating HERC and supporting its efforts to become a better neighbor and community landmark. Visit our expanded collection of images featuring unique waste to energy facilities from around the world.

I’m speechless… too bizarre…

And alsoin the bizarre category, Asst. City Attorney wrote an opinion as to the City’s authority to adopt more stringent air emissions standards, a blatant attempt to quash their desire to act, to LAWFULLY act:

Asst. City Atty. Memorandum re: HERC

It was a hoot that he cited, offpoint, from Jimmy Jam Harris’ tax case in Hennepin County — when I looked that one up, right below it was Terry Lewis’ tax case! I can’t imagine why he’d cite these cases, as they didn’t make a useful argument for his view of statutory interpretation or lack thereof…

Anyway, I had a few minutes to blast off a reply:

Overland Memorandum re: City Authority

From the article about it in the STrib, and note they’re clear about their authority:

“We’re well within our authority to say no,” Commissioner Carla Bates argued before the vote. Commissioners cited the admission of Covanta’s environmental director, Jeffrey Hahn, that burning more trash will result in a small amount of additional plant emissions, but he said that pollutants will remain far below limits set by the state. Hahn said the plant has already added some equipment and would add more to reduce nitrogen oxide emissions that are closest to the current limit.

Here’s the full article:

Bid to burn more trash near ballpark turned down

The Minneapolis Planning Commission, citing health effects, rejected Hennepin County’s bid to allow more garbage to be burned daily.

By STEVE BRANDT, Star Tribune

Hennepin County’s bid to burn more garbage next to the new Minnesota Twins stadium crumpled Monday in the face of skepticism from Minneapolis planning commissioners over the potential health effects.

The county had sought approval of a 21 percent increase in the daily average tonnage of garbage burned at the downtown facility. But on Monday evening, the Planning Commission voted 6-2 to deny an amendment to the facility’s zoning permit that would have allowed the burning of more than 1,200 tons of trash daily.

A majority of commissioners said they’re not convinced that increasing the plant’s burning of trash is consistent with a required finding that such an action isn’t detrimental to public health.

But the debate may not be over. The commission’s decision can be appealed to the City Council within 10 days, and it runs counter to the advice of the city attorney’s office. The county and incinerator operator Covanta Energy referred a reporter to each other on the question of an appeal.

Carl Michaud, the county’s environmental services director, said he needed to “go back and talk to a few folks” before commenting on an appeal. He disputed the assertion of planning commissioners that there was insufficient analysis of the plant’s environmental effects.

“We’re well within our authority to say no,” Commissioner Carla Bates argued before the vote. Commissioners cited the admission of Covanta’s environmental director, Jeffrey Hahn, that burning more trash will result in a small amount of additional plant emissions, but he said that pollutants will remain far below limits set by the state. Hahn said the plant has already added some equipment and would add more to reduce nitrogen oxide emissions that are closest to the current limit.

An opinion by the city attorney’s office warned that “anecdotal testimony that more throughput equates to more pollution which equates to bad health effects is not a sufficient basis to deny.” But commissioners also found that burning more trash runs counter to city sustainability and growth policies.

The burner was constructed in the 1980s with a state limit that it could burn an average of 1,000 tons of trash per day incorporated into its city zoning permit. The state cap was increased to the plant’s 1,212-ton-per-day design capacity in 2000. One of the legislators involved, Sen. Linda Higgins, DFL-Minneapolis, said that the intent was to make use of unused capacity, and that the plant burns cleaner than in its early days.

But the North Loop Neighborhood Association, which reviewed the proposal, said it would favor a 10 percent increase in the plant’s processing only if there was no increase in pollutants released. The plant generates enough electricity to power the equivalent of 25,000 homes and also supplies steam for downtown heat.

The county and Covanta relied heavily on a finding in ballpark environmental studies that the incinerator’s health effects are below levels at which concern for ballpark users would be triggered under federal standards. But opponents argued that health effects on a broader area of emission dispersion need to be measured and considered.

The Minneapolis City Council hasn’t weighed in on incinerator capacity issues for more than 20 years.