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Laura and John Reinhardt th 3552 26 Avenue South Minneapolis, MN 55406 612.724.0740 October 15, 2002 BY MESSENGER The Honorable Kathleen A. Sheehy Administrative Law Judge Office of Administrative Hearings 100 Washington Square, Suite 1700 Minneapolis, MN 55401 Re: EQB Staff Suggested Changes (10-11-02) to Proposed Amendments to Power Plant Siting Rules: Minnesota Rules Chapter 4400 OAH Docket No. 58-2901-15002-1 Dear Judge Sheehy: We have had an opportunity to review the EQB’s 10-11-02 suggested changes to the Chapter 4400 rule language it had previously proposed. We are pleased with the amended language for proposed Rule 4400.1350: Notice of Project (pp. 1-7), as well as the EQB’s “Draft Public Notice” (pp. 8-9). We wish to thank the EQB for responding to the notice concerns that were raised by various participants in this docket. However, there is one significant notice problem remaining in proposed Rule 4400.5000: Local Review of Proposed Facilities (pp. 17-20). We had overlooked this problem in our earlier comment, because the original 4400.5000 language was silent on public and landowner notification, leading us to believe that the notice provisions contained in Minn. Stat. § 116C.57, subp. 2b (and specifically referenced in Minn. Stat. § 116C.575, subp. 4) would apply here as well. In Minn. Stat. § 116C.575 (“alternative review of applications”) and Minn. Stat. § 116C.576 (“local review of applications”), the ...

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Extrait

Laura and John Reinhardt

3552 26

Avenue South

Minneapolis, MN 55406

612.724.0740

October 15, 2002

BY MESSENGER

The Honorable Kathleen A. Sheehy

Administrative Law Judge

Office of Administrative Hearings

100 Washington Square, Suite 1700

Minneapolis, MN 55401

Re:

EQB Staff Suggested Changes (10-11-02) to Proposed Amendments

to Power Plant Siting Rules: Minnesota Rules Chapter 4400

OAH Docket No. 58-2901-15002-1

Dear Judge Sheehy:

We have had an opportunity to review the EQB’s 10-11-02 suggested

changes to the Chapter 4400 rule language it had previously proposed. We are

pleased with the amended language for proposed Rule 4400.1350: Notice of

Project (pp. 1-7), as well as the EQB’s “Draft Public Notice” (pp. 8-9). We wish

to thank the EQB for responding to the notice concerns that were raised by

various participants in this docket.

However, there is one significant notice problem remaining in proposed

Rule 4400.5000: Local Review of Proposed Facilities (pp. 17-20).

We had

overlooked this problem in our earlier comment, because the original

4400.5000 language was silent on public and landowner notification, leading

us to believe that the notice provisions contained in Minn. Stat. § 116C.57,

subp. 2b (and specifically referenced in Minn. Stat. § 116C.575, subp. 4) would

apply here as well.

In Minn. Stat. § 116C.575 (“

alternative

review of applications”) and Minn.

Stat. § 116C.576 (“

local

review of applications”), the Legislature allowed various

“applicable projects” to qualify for a somewhat different standard of

siting/routing review than what is required by Minn. Stat. § 116C.57.

The

definitions of “applicable projects” for such alternative review is set forth in

Subdivision 2 of each of § 116C.575 and § 116C.576. Five of the seven types of

“applicable projects” that qualify for alternative review are exact matches in

each of these statutes:

The Honorable Kathleen A. Sheehy

October 15, 2002

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•

large electric power generating plants with a capacity of less than 80

megawatts

•

large electric power generating plants that are fueled by natural gas

•

high voltage transmission lines of between 100 and 200 kilovolts

•

a high voltage transmission line service extension to a single

customer between 200 and 300 kilovolts and less than ten miles in

length

•

a high voltage transmission line rerouting to serve the demand of a

single customer when the rerouted line will be located at least 80

percent on property owned or controlled by the customer or the

owner of the transmission line

The Legislature specifically required that notice of an application under

§ 116C.575 (

alternative

review of applications) be the same as § 116C.57,

subd. 2b (now set forth in detail in EQB’s 10-11-02 amendments for Rule

4400.1350: Notice of Project).

However, under § 116C.576 (

local

review of

applications), the Legislature merely provided that the applicant notify the

board that it had applied for local siting/routing review, and was silent on

public notice requirements.

The

EQB’s

10-11-02

amendments

Rule

4400.5000

insert

requirement for mailed notice to “persons on the general notification list”

(p. 17), but neglect to include any requirements for public or landowner

notification. In its explanation concerning new amendments to this Rule, the

EQB states (pp. 18-19):

“The language being suggested does not require the

applicant to include in the notice all the information

that is required under part 4400.1350, subp. 3 … nor

all the information required to be included in the

notice. Because the project is being reviewed locally, it

is appropriate to rely on the local governmental body

to determine what kind of notice is appropriate within

the community. In addition, a lot of the information

required under the EQB rule is pertinent to the EQB

and may not apply to local review.

For example,

references to the EQB rules and to the EQB public

advisor do not apply in such situations.”

The Honorable Kathleen A. Sheehy

October 15, 2002

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The EQB’s position on notice under local siting/routing authority is

unjustifiable. Part of the EQB’s explanation concerning this Rule is that there

are “people who want to know about proposed large power plants and high

voltage transmission lines, regardless of …. whether the applicant has sought a

permit from the EQB or the local unit of government” (p. 18) and that “a

broader dissemination of notice is required.”

(p. 18)

But despite this

acknowledgment, the EQB added notice only to persons on its general

notification list! We maintain that regardless of the governmental unit from

which an applicant seeks a site or route permit to construct large energy

facilities on private land, the citizens who may be affected by the application

are certainly “people who want to know.”

Further, potentially affected

landowners are entitled by Constitutional right to direct mailed notice. (That’s

why the Legislature included landowner notification requirements in its 2001

energy laws in the first place.)

The Legislature’s intent to provide direct mailed notice of a proposed

project to “each owner whose property is on or adjacent to any of the proposed

sites for the power plant or along any of the proposed routes for the

transmission line” (§ 116C.57, subd. 2b) is a clear mandate, and may not be

circumvented by an applicant selecting

local

governmental review instead of

state agency

review. Although the Legislature did not specifically include the

116C.57 notice requirements in Minn. Stat. § 116C.576 (local review of

applications), it did reference the notice requirement in Minn. Stat. § 116C.575

(alternative review of applications), and these two statutes have almost

identical definitions for the types of projects that may seek alternative or local

review.

The Legislature certainly did not

exempt

landowner notification

requirements from projects under local review. Further, the EQB’s explanation

of the 10-11-02 changes to part 4400.5000 says that for projects qualifying for

local review, “the law requires that a similar process to the one followed by the

EQB, including environmental review, be followed by the local unit of

government.” (p. 18) This statement is equally true with respect to landowner

notification.

The EQB explains that the language suggested for 4400.5000 does not

contain the 4400.1350, subp. 3 notice requirements because “a lot of the

information required under the EQB rule is pertinent to the EQB and may not

apply to local review.” (p. 19) This statement is totally incorrect. The EQB’s

10-11-02 proposed language for “content of notice” (4400.1350, subp. 3) need

only be slightly altered to apply to local review.

We have set forth the

necessary language revisions below (in brackets):

The Honorable Kathleen A. Sheehy

October 15, 2002

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“Content of Notice:

A description of the proposed project, including a map

showing the general area of the proposed site or proposed route

and each alternative.

A statement that a permit application has been

submitted to the

[name(s) of local government unit(s)]

and the

name of the permit applicant and information regarding how a

copy of the application may be obtained.

A statement that the permit application will be

considered by the

[responsible government unit(s)]

under the

provisions of

[applicable laws and rules]

and describing the time

periods for the

[responsible government unit(s)]

to act.

A statement that the

[responsible government unit]

will hold a public meeting

[appropriate time period]

and the date

of the meeting if it is known at the time of the mailing.

The manner in which the

[responsible government

unit]

will conduct environmental review of the proposed project,

including the holding of a scoping meeting

[if applicable]

at which

additional alternatives to the project may be proposed.

The name of the

[responsible government unit]

staff

member who has been appointed by the

[responsible government

unit]

to serve as a public advisor, if known, or otherwise, a general

contact at the

[responsible government unit]

The manner in which a person may register his or her

name with the

[responsible government unit]

to be included on

the project contact list.

A statement that a public hearing will be conducted

[if

applicable]

after

the

[appropriate

environmental

review

document]

is prepared.

A statement indicating whether a certificate of need or

other

authorization

from

the

Minnesota

Public

Utilities

Commission is required for the project and the status of the matter

if such authorization is required.

The Honorable Kathleen A. Sheehy

October 15, 2002

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A statement indicating whether the applicant may

exercise the power of eminent domain to acquire the land

necessary for the project and the basis for such authority.

Any other information requested by the

[responsible

government unit]

to be included in the notice.”

The EQB’s 10-11-02 Draft Notice of Application (pp. 8-9) can be similarly

altered to accommodate local government review.

Local review of applications for power plants and high voltage

transmission lines may actually involve numerous governmental jurisdictions.

These project reviewers must have specific guidelines from the State

concerning their legal responsibilities and duties.

By including clear notice

requirements in these Rules, the State will avoid uncertainty for applicants,

local governmental units, and affected citizens.

In addition, clear notice

requirements will prevent an applicant utility from attempting to manipulate a

local unit of government into failing to provide direct notice to potentially

affected landowners. The Legislature aimed the notice requirements contained

in these statutes and rules at applicants for large energy facilities rather than

governmental units who may end up reviewing a proposal; thus, the applicants

cannot be relieved of the duty to notify by simply approaching a different

governmental unit for review of a project proposal.

Under the structure of the EQB’s proposed Rules, a project proposer may

endeavor to

avoid

landowner notification by choosing to proceed under

§ 116C.576 rather than § 116C.575 for the types of projects described (with

identical language) in both statutes. Such a result would unfairly prejudice

landowners on projects reviewed by local units of government. Clearly, such a

result is irrational and was not intended by the Legislature, as explained by

Minn. Stat. § 645.17, “Presumptions in ascertaining legislative intent”:

“In ascertaining the intention of the legislature the

courts may be guided by the following presumptions:

(1) the legislature does not intend a result that is

absurd, impossible of execution, or unreasonable;

(2) the legislature intends the entire statute to be

effective and certain;

(3) the legislature does not intend to violate the

constitution of the United States or of this state;

The Honorable Kathleen A. Sheehy

October 15, 2002

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(4) when a court of last resort has construed the

language of a law, the legislature in subsequent laws

on the same subject matter intends the same

construction to be placed upon such language; and

(5) the legislature intends to favor the public

interest as against any private interest.”

The

Legislature

unmistakably

intended

that

potentially

affected

landowners would receive direct mailed notification when it redrafted

Minnesota’s energy laws in 2001.

Furthermore, potentially affected citizens

enjoy the Constitutional right to direct notice, so there can be no exemption

from this requirement merely based upon who is named as the responsible

governmental unit for siting/routing of large energy facilities.

As the EQB

states in its Rule 4400.5000 explanation, “people … want to know about

proposed large power plants and high voltage transmission lines, regardless of

… whether the applicant has sought a permit from the EQB or the local unit of

government” (p. 18) and that “a broader dissemination of notice is required”

under Minn. Stat. § 116C.576. (p. 18)

Proposed Rule 4400.5000

must

be amended to include the same notice

requirements as set forth in the new proposed Rule 4400.1350, with minor

language revisions as outlined above.

In this way, the Legislature’s explicit

intent to provide adequate notice to potentially affected citizens will be

satisfied.

Thank you for your consideration.

Respectfully submitted,

Laura A. Reinhardt

John C. Reinhardt

cc:

Alan Mitchell

(by messenger)

Manager, Power Plant Siting

MN Environmental Quality Board

David Zoll

(by U.S. mail)

MN Center for Environmental Advocacy

Paula Goodman Maccabee

(by U.S. mail)

Sierra Club

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