Legalectric

Notice of Motion and Motion – Limit Public Participation and Exclude Intervenor Exhibits

HA!  Over my dead polar bear!  This “public participation” piece is one of “my” issues, so much so that I proposed some changes in my Rulemaking Petition to OAH:

Overland – Petition for Rulemaking – OAH

To see the full docket, go to www.puc.state.mn.us, click on “Search eDockets” and search for 08-1233.

CATCH THE WEBCAST TUESDAY, WEDNESDAY & THURSDAY:

GO HERE and click the blue “Watch Webcast” button!

And here are their Information Request responses — can’t email these around, too big, so I’ll have to post them!

Enjoy!

AWA Responses to GWT Info Requests – No. 2-12 Part I

AWA Responses to GWT Info Requests No. 2-12 Part 2a

AWA Responses to GWT Info Requests Nos 2-12 Part 2b

AWA Responses to GWT Info Requests Nos 13-35

AWA Responses to GWT Info Requests Nos 36-45

AWA Response to Belle Creek Info Request 2

AWA Response to Belle Creek Info Request 3

AWA Response to Goodhue County Info Request No 3

AWA Resposne to CSS Info Request 1

AWA Response to CSS Info Request No 2

AWA Response to CSS Info Request No 3

AWA Response to CSS Info Request No 4

Check the PUC filings yesterday — there goes Todd Guererro with his disposition problem!

As you know, the PUC issued an PUC’s Order – Referral to OAH in which the AWA Goodhue wind project was sent to an Administrative Law Judge to address the following issues:

1. The ALJ assigned to this matter is requested to develop a record on every standard in Article 18 that is more stringent than what the Commission has heretofore applied to LWECS and make recommendations regarding each such standard whether the Commission should adopt it for Large Wind Energy Conversion Systems in Goodhue County. The Commission has identified two such standards in this Order (Section 4 and Section 6) but is not by this Order restricting the ALJ from developing the record and making recommendations regarding additional standards in Article 18 that upon further examination meet the “more stringent” qualification.

2. The ALJ assigned to this matter is requested to allow the parties to develop a factual record on the question of “good cause” as that term appears in Minn. Stat. § 216F.081 and to provide recommendations on whether, with respect to each standard in Article 18 identified in the course of her review as “more stringent” than what the Commission has heretofore applied to LWECS, there is “good cause” for the Commission to not apply the standard to siting LWECS in Goodhue County.

3. As the ALJ addresses the issues identified in the previous two sections, the ALJ is requested to include (but not limited to, by this Order) whether there is sufficient evidence regarding health and safety to support a 10 rotor diameter set-back for non-participating residents and the stray voltage requirements.

AWA Goodhue is not happy about this, and have filed this:

AWA Goodhue’s Motion for Summary Disposition

Here are a couple snippets for the gist of their argument:

… the county’s ordinance applies only to small wind projects up to 5 MW and therefore does not set standards that apply to the AWA Goodhue project. In addition, because the county has chosen not to regulate wind projects up to 25 MW, it has no authority under Minn. Stat. § 216F.081 to adopt “more stringent wind standards” and, as a result, there are no county standards for the Commission to consider or apply…

Interpreting the statute so that it is limited only to counties that have assumed permitting authority for projects up to 25 MWs is the most reasonable interpretation in light of the established regulatory framework for siting wind turbines in Minnesota. The legislature has designated the Commission as the primary siting authority for large energy projects, including LWECS.13 Even in the limited circumstance where a county assumes responsibility for permitting LWECS under 25 MWs, the default under section 216F.08(c) is that the Commission’s general siting standards (which are based on the Commission’s
expertise and past experience) apply unless the county adopts more stringent standards.

It is wholly inconsistent with this framework to then read section 216F.081 to require the Commission, when making a decision on a project located in a county that has not adopted permitting authority, to apply the county’s more stringent standards. Moreover, it makes little sense for a county to adopt standards for LWECS if the county has no intention of regulating LWECS (up to 25 MW) in the first place. And, it makes even less sense for the Commission to have to apply those standards if the county itself is not inclined to do so.

Last, interpreting section 216B.081 to allow any county to adopt more stringent standards is at odds with section 216F.07, which expressly states that a site permit from the Commission preempts all county rules, regulations and ordinances. Rules of statutory construction require that every law be interpreted, to the extent possible, to give effect to all of its related provisions.14 Accordingly, to give effect to section 216F.07, county standards must be applied only where a county has assumed permitting authority for LWECS up to 25 MW. Any other interpretation would allow the exception to swallow the general rule.

We have to respond by January 14, 2010!

To check out the full docket, go to www.puc.state.mn.us and then to “Search eDockets” and search for docket 08-1233.

As seen on Hwy. 52 between the Zumbrota exits

Goodhue County is considering modifications of their wind ordinance, and have formed a committee to look at it with county planning staff.

CLICK HERE for the County’s wind page.

And here is the draft ordinance, in pdf’d Track Changes:

Article 18 draft revision 06-14-2010

Here is the report from the Rochester Post Bulletin:

First draft of Goodhue County’s new wind regulations proves unpopular

And from June 15th Beagle:

County seeks more time on wind proposal

We were there to address specifics about proposed changes, and the discussion was wide ranging.

Ben Kerl, National Wind/AWA Goodhue (or whatever their name may be today!) made some astounding statements yesterday.  He actually said, regarding Goodhue County’s ordinance proposal for wind projects, where they proposed to require a copy of the Power Purchase Agreement, to demonstrate it’s not a vaporware project, to help assure “they wouldn’t build an empty building,” and he had the audacity to say that he objected to this requirement, and that he’d have to check with Xcel to see if it could be disclosed.  IF IT COULD BE DISCLOSED!!!

EXCUUUUUUUUSE MEEE?!?!  It’s already public information (redacted a tad-bit), it’s already a public document:

PPA – North Goodhue Wind

PPA – South Goodhue

The PPA provided in the PPA dockets would be sufficient to satisfy the county’s concerns.

That statement of Kerl’s was SO egregious I just couldn’t sit there and let it slide.

These PPAs above are from the Goodhue PPA dockets at the PUC.  To review the full PPA dockets:

1. Go to www.puc.state.mn.us; and
2. Click on “search documents;” and
3. Search for dockets 09-1348 and 09-1350 (they’re pretty much identical).

Oh, and we were discussing a Property Protection Plan as has been established in other jurisdictions, where the developer essentially guarantees that the property values will not be lower.   Steve Groth raised that issue, and of course Ben Kerl objected, and thought it essentially a black hole of liability that would quash funding.  I raised the “Buy the Farm” provision for transmission as something that is used in transmission to assure that if a landowner wants out, that they could do so.

CLICK HERE for  Minn. Stat. 216E.12 — “Buy the Farm” and go down to Subd. 4.

There’s more, but that requires a little background work, so stay tuned.  In the meantime…

Shame on you, Ben Kerl…

Last Thursday, July 9, there was a Wind Energy Forum in Wanamingo, the same Community Center where, about three weeks prior, there was a CapX 2020 scoping meeting.  This was sponsored by Southern Minnesota Initiative Foundation (Rich Huelskamp is part of that now?).

Noteworthy comments:

Dean Runde, Pioneer Prairie, when asked about turbine noise, said: “I’m surrounded by turbines, and I don’t hear a thing.  They’re half a mile away and I don’t hear a thing.”

Half a mile?  But of course you can’t hear them!  Try 800 feet, 500 feet!!!

The author of the Dept. of Health White Paper was on a panel also.  Here’s that report:

MN Dept of Health – Public Health Impacts of Wind Turbines

The woman representing National Wind looked very unhappy.  Maybe it was the talk of setbacks, and I’m sure it was the talk of how developers are involving all the neighbors.  After all, Goodhue County has been a problem.  First, there was the ill-conceived “Kenyon Wind,” and then there was Goodhue Wind.  But what I found most enlightening, which I’m sure the National Wind folks wouldn’t like, was a Windustry handout about landowner leases which has a number of things for landowners to watch out for.  Here’s one that stands out:

7. Landowner should be careful about agreeing to the following types of provisions:

(a) Confidentiality provisions which prohibit Landowner from disclosing information pertaining to the
terms and conditions of the lease/easement.

Here’s the Windustry handout:

Windustry – Wind Energy Lease and Easement Agreements

Of concern — I’ve been hearing reports of non-disclosure provisions in Nicollet County, Bent Tree and Goodhue projects, but copies of the actual contracts have not been produced, so we’ll see…

And for some guidance, here’s a draft county ordinance regarding wind turbines that has a more reasonable setback:

Murray County Wind Energy Ordinance

Murray County did well in getting turbines set back far enough from roads, but I’d like to see more distance in basic setbacks.  Where they set setbacks at 3 or 5 rotor diameters, I’d like to see it at 3 or 5 total tower height (including up to tip of rotor when extended straight up).

Here’s the report from the Beagle:

Residents flood wind energy forum

WANAMINGO — Wind energy may be the wave of the future, but many Goodhue County residents still wonder what it means for them.

By: Jen Cullen, The Republican Eagle
RELATED CONTENT

WANAMINGO — Wind energy may be the wave of the future, but many Goodhue County residents still wonder what it means for them.

More than 150 people attended a wind energy forum Thursday in Wanamingo sponsored by the Southern Minnesota Initiative Foundation and the Southwest Initiative Foundation.

The agencies have collaborated to bring several wind energy forums to southern Minnesota communities.

“We need to get our brains around this, we need to get our minds around this,” said Tim Penny, president of the Southern Minnesota Initiative Foundation.

The forum focused mainly on community-based wind farm projects — those where local landowners are stakeholders.

A handful of wind energy companies — two of which were represented at Thursday’s forum — are interested in bringing such projects to areas like Kenyon, Cherry Grove, Goodhue and Belle Creek townships.

Representatives from competitors Geronimo Wind and Goodhue Wind, LLC., have been talking with residents for more than a year about putting wind turbines on land in the Goodhue area.

“Large firms want to build larger facilities,” Penny said. “We still think there’s an opportunity for some community-based projects that are smaller. But it’s not an easy path, it’s not a quick path.”

But it may be a more profitable path, said Eric Lantz, a member of National Renewable Energy Laboratory’s markets and policy analysis group.

Lantz evaluates the economic development impacts of wind power.

“It does look like community wind projects have a greater economic impact than absentee-owned projects,” Lantz said. “Perhaps that impact is not as great as stated by some, but there’s certainly a real advantage there.”

Lantz said research indicates community-based projects offer more jobs and funnel money back into the local economy.

Audience members peppered panelists with questions about everything from power purchase agreements to legal issues.

One even wondered just how “green” wind energy really is.

“The fuel source that powers the electricity that comes out of the turbines is air,” said Charlie Daum with Geronimo Wind. “To me that sounds like green energy, that feels like green energy.”