Thursday, June 06, 2013
Save The Ozarks, a citizen organization formed by residents concerned about a proposed SWEPCO high voltage transmission line, has been dealt a setback in STO’s petition to intervene in proceedings before the Arkansas Public Service Commission. The APSC issued an order only allowing the group to have limited instead of full participation, ruling that the organization could represent environmental concerns, but not concerns of individual property owners.
“STO is not the owner of the members’ properties,” states a filing by APSC staff. “Therefore, STO has no standing on its own as a property owner whose land is being traversed. Additionally, representing both STO’s interest as an environmental preservation organization and individual property owners’ real property interests is or could be an inherent conflict.
“Staff therefore objects to STO’s intervention to the extent that it is attempting to represent unidentified members’ individual property interests in addition to STO’s interest as an environmental preservation organization.
“Should STO be granted intervener status, Staff requests that intervention by STO be limited to furthering the entity’s mission of environmental conservation and protection.”
“As indicated in order #4, STO is not allowed to represent individual interests,” said John P. Bethel, executive director of the APSC. “Staff argued to the administrative law judge that the organization Save The Ozarks’ stated purpose is to protect the environment, and not to represent individual landowners. After that decision, some landowners who were involved with STO have jointly petitioned to intervene. The intervention deadline has passed.”
Pat Costner, a founding member of STO whose solar-powered homestead is in the path of four of SWEPCO’s proposed routes, questioned whether there is precedent for this type of order preventing citizens linking together to be represented by an attorney. Costner said most residents don’t have the financial resources to hire an attorney for lengthy and expensive proceedings like this, and that is why they banded together.
“What was the purpose of their limiting our participation?” Costner asks. “What is their objective?”
STO attorney Richard Mays met with APSC staff to discuss STO being blocked from being able to represent the interests of property owners. He filed a motion May 30 for clarification that STO “can participate fully for the purposes of discovery, presentation of evidence, examination and cross-examination of witnesses and argument insofar as such matters related to the effect of SWEPCO’s proposed projects… STO requests clarification as to whether the potential impact of SWEPCO’s proposed project and facilities upon the property of STO’s individual members may be referenced by STO as part of the effect of such project and facilities upon the general environment.
“STO also requests that the Order be clarified to specify that STO’s participation in this includes presentation of evidence, examination and cross-examination of witnesses and arguments on the issues of public need and necessity for the proposed project and facilities, economic issues and all other issues that will arise in this matter in addition to those affecting the environment. Such clarification at this time will avoid potential time-consuming argument during future proceedings in this matter with other parties who may read Order # 4 more narrowly.”
Mays said he is not as concerned about the scope of the order as he was upon first seeing it. “But it is ambiguous, and we need a clarification,” Mays said. “Assuming that the hearing officer interprets it as I hope she does, I think we will be all right.”
Bethel said there is nothing in the order preventing STO from fully participating in arguments regarding the need for the transmission line. But when asked if STO could also talk about impacts to tourism, the economy and the potential decline in property values for land on or near the route, Bethel said that would be decided by the administrative law judge hearing the case.
STO has taken a different path than some other groups intervening that have limited their objections to particular routes, and not challenging the need for the line. STO is objecting to the project in its entirely, claiming that it is not needed. Only after the APSC rules that a project is needed does it proceed to determine the best route for the project.
“The staff of the commission has the responsibility to consider the public interest and look and see if the application has satisfied statutory requirements for a Certificate of Environmental Compatibility and Public Need,” Bethel said. “If there is a need for the facility, then the commission determines whether the preferred route is more reasonable or if one of the other routes might be more reasonable. It could recommend some combination of the segments. Recommendations are based on the evidence.”
Bethel said there is nothing in Order #4 that prevents STO from talking about the need for the project. All direct testimony, exhibits or documentary evidence are to be filed by interveners by June 28, with rebuttals by SWEPCO due by July 19. Public hearings are scheduled July 15 at the Inn of the Ozarks in Eureka Springs and July 17 at the Embassy Suites Northwest Arkansas in Rogers.
Costner said interveners are being required to submit their entire case before the APSC holds public hearings. “That’s unheard of,” Costner said.
Bethel said there would be substantial opportunities after the public hearing for interveners to make additional filings in rebuttal testimony, and even as late as the evidentiary hearing before the administrative law judge that begins Aug. 26 there would be opportunity for public comment if someone’s concerns had not yet been heard.
The hearing before Administrative Law Judge Connie Griffin that begins Aug. 26 is expected to last several days. Griffin will review the case and then issue an order, which can be accepted, modified or rejected by the three-member APSC appointed by the governor. If the APSC doesn’t issue an order within 30 days, the decision goes into effect.
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