Legalectric

Here in Red Wing, and throughout southeast Minnesota, and along the other side of the river in Wisconsin, sand has been a major issue. Many communities were dragged into this issue when an epidemic of silica sand mines, processing, and transloading facilities sprang up to support fracking for oil. Sand interests got Red Wing’s Mayor ejected when he was both Mayor and Executive Director of sand mining industry’s Minnesota Industrial Sand Council:

Mayor Egan Resigns

Sand was also an issue as Minnesota attempt at, though I’d say avoided, developing sand mining rules:

Someone explain rulemaking to the MPCA

As to sand as a resource, that’s not really been a part of the discussion in these parts. And on that note, the United Nations Environmental Programme (UNEP) has released a report:

And in the STrib: UN environment agency warns of effects of rising sand use

Check it out!

Yesterday, Freeborn Wind, the Applicant, had its wind project permit tabled by the Minnesota Public Utilities Commission.  How’d that happen!?!  SNORT!  I heard there was an audible gasp from that side of the room when it happened.

This latest round started with a bizarrely attempt to get more than what they got:

20191-148986-02_Freeborn Wind’s Request4Clarification

Yeah, it sure got them more!!  Great idea, disclosing an “agreement” with Commerce and MPCA after being granted a permit by PUC after the ALJ Recommendation that the permit be denied (and in the alternative, that they be granted time to demonstrate that they COULD comply):

So what did Freeborn say in its Request4Clarification?

Freeborn Wind requests the Commission clarify its Site Permit to adopt Section 7.4, as
proposed by Freeborn Wind and agreed to by the Department and MPCA, in place of the current Sections 7.4.1 and 7.4.2, to both ensure consistency with the Order and avoid ambiguity in permit compliance.

Freeborn Wind’s September 19, 2018, Late-Filed proposal for Special Conditions Related
to Noise outlines the agreement reached between Freeborn Wind, the Department and the MPCA on this issue.[fn omitted] The letter indicated that Freeborn Wind had carefully reviewed the proposed Sections 7.4.1 and 7.4.2 from the Staff Briefing Papers, and was concerned they “create[d] ambiguity and would lead to significant compliance challenges.” [fn omitted] Instead, Freeborn Wind offered “proposed alternative language addressing pre-construction noise modeling and postconstruction noise monitoring special conditions” which is “specific to this case” and would “achieve a similar level of noise regulation, but in a manner that can actually be measured following the applicable rules and standards.”

p. 1-2, 20191-148986-02_Freeborn Wind’s Request4Clarification (emphasis added).

SNORT!  Really, they said that!  It was good to see confirmation of the orchestration I’d observed at the September 20 PUC agenda meeting, being in the middle of the full court press of  Freeborn Wind, Commerce and MPCA (why exactly was MPCA there, they have no jurisdiction).  Oh, about MPCA’s jurisdiction, the letter of Kohlasch explains that well:

Exhibit M_Kohlasch_Letter_20189-146351-01

So we responded to that Freeborn Wind Motion:

AFCL_ResponsetoFreebornMotion-ClarificationRequest

I’d sent Data Practices Act Requests to MPCA and Commerce:

MPCA-Agreement_Data Practices Act Request

Exhibit C_Commerce-Agreement_Data Practices Act Request

And on receiving Data Practices Act Requests from MPCA, which showed some of the behind-the-scenes going on, filed this:

20192-150272-01-1_AFCL Motion to Remand to ALJ

And the moment I filed it, and went to email to check filing status, get confirmation, and I see an email from Wachtler, Commerce-EERA, which is included in this, filed the following day:

AFCL_Motion-Addendum to Remand to ALJ_FINAL FULL PACKET

They produced NON-O-T-H-I-N-G!  Nothing at all!

So off we went to the PUC, and the meeting was bizarre.  The Commission did not take up the Many Motions, Motions to Strike, Motions for Reconsideration, Motions for Remand, Motion after Motion, it was dizzying.  Admissions of “confusion” were heard, and can’t have Commissioner confusion.  Methinks that there was confusion at the September 20, 2018 meeting, which was why the permit was approved with the conditions offered and haggled over just a bit.  The video, do check it out, scroll down to #3 at link, starting at 16:43:

TABLED!  We have 14 days to provide language for the permit conditions, 7.4; 7.4.1; 7.4.2.  Then another Agenda meeting date will be set, ostensibly to deal with Motions, language, etc.

Freeborn Wind at the PUC tomorrow.

Watch on line HERE: Live Webcast

ANOTHER LATE FILING!!!  This last minute flurry is indicative of their desperation!  So I guess it’s a good thing, but hey, I’ve got to get ready for the Wind Rulemaking docket that I’ve been trying to get before the Commission for how many years?  Oh well… one thing at a time…

Freeborn Wind’s “Late Filed — Proposed Special Conditions Related to Noise _20189-146486-01

And our response just filed:

AFCL’s Late Filing2_Reply2Freeborn

Oh yeah, we’re going to have fun at the PUC tomorrow.  Watch on line HERE: Live Webcast

And background, yesterday and day before:

AFCL reply to Freeborn Wind’s Motion to Exclude

Freeborn Wind files Motion to Exclude!!

Whew, quick response to Freeborn Wind’s Motion:

Association of Freeborn County Landowners_FINAL Reply

Here’s their Motion:

20189-146448-02_Motion to Exclude Untimely Filing of Frank Kohlasch

From here, it looks like they’re trying to weasel their way into a 1 dBA “wiggle room” to add onto the state’s 50 dBA limit.  Ummmmmm, no!  No way is that supported by the record, and really, there’s already a 3 dBA “margin of error” built in, supposedly, well, so says Freeborn Wind’s expert Hankard!

Here’s the MPCA letter they’re so up in arms about, but wait, it’s nothing new!!!!

Letter 9/11/2018 Frank Kohlasch MPCA_20189-146351-01

Freeborn, you know all about ambient sound noise modeling, we discussed it for how many hours in the hearing?  Good grief…

Here are the MPCA’s noise standards:

NOISE STANDARDS  Minn. R. 7030.0040

We’re in another day of Enbridge Line 3, today no oral argument or comments, it’s deliberation only.  In the intro, Commissioner Sieben introduced a lot of modifications, laid out on a sheet of paper which was passed around to Commissioners, and then Commissioner Tuma did the same with I believe a couple of sheets (he seems to introduce something at every meeting, spring it on people, with no time to review).  Now they seem to be negotiating how they’re going to approve the Certificate of Need.  ??  I have no idea what they’re talking about, there are no copies for the public, and the documents Commissioners Sieben and Tuma have not been eFiled.  ???

Sierra Club and other intervenors have filed a Motion objecting to entry of new information that has not been subject to review, and that the information should be subject to a contested case proceeding before the Administrative Law Judge.

20186-144310-01_New Info_Remand for Contested Case Proceeding

As they’re going now, it’s as if they are negotiating a settlement with Enbridge, but hey, what about the intervenors, who are parties with equal standing in this?

They’re talking about “beneficiary,” but what they’re searching for is “additional insured.”  And they’re talking about unavailability of insurance for this, well, this is right along the lines of Price-Anderson for nuclear, where we subsidize the industry with no-fault coverage with nominal recovery allowed!

I have tried to get copies eFiled of the Sieben and Tuma sheets that have been passed around, struck out.  Ain’t happening.

They’re talking about a “landowner choice” program where landowners have the option of removal of the old Line 3 from their land.  Schuerger is raising issue of need for informed consent.  YES!  So can we hear from intervenors about all this?  Big issue — all of this is proposed to be handled in a Compliance Filing, and there’s no procedural option for anyone to comment on compliance filngs, unless people just jump in and take it upon themselves to file comments — but there’s no suggestion or guarantee that any comments on what Enbridge comes up with, that it will even be considered.

What a mess…  Certificate of Need approved, with directive to adopt the Recommendation of the Administrative Law Judge to the extent that it is consistent with their decision — that’s backwards, putting the cart before the horse.  Are they making such a mess of this so that on appeal the court will throw it out?

Now on to the route permit.