Thursday, October 03, 2013
Opponents of the proposed American Electric Power (AEP)/Southwestern Electric Power Company (SWEPCO) proposed high voltage transmission line have said for months that the company’s application to the Arkansas Public Service Commission (APSC) for the project did not show a need for the project, and the application was woefully deficient in the Environmental Impact Study (EIS) and other key areas.
Save the Ozarks (STO) said a filing by AEP/SWEPCO this week that basically asks to redo their application is proof of what STO and other opponents have been saying all along.
“In the latest development in AEP/SWEPCO’s proposal to construct a 50-mile long, extra-high voltage transmission line across the Ozark Highlands, the investor-owned utility filed a new motion with the APSC on September 26,” STO Director Pat Costner said. “This ‘Motion to Conform the Pleadings to the Proof’ is a follow-up to a similar oral motion made during the last hour of the last day of the hearing in Little Rock. STO, the citizens’ group at the center of what is now a region-wide public opposition to the project, objected to AEP/SWEPCO’s oral motion at the hearing and is expected to challenge this new motion in a response to be filed later this week.”
Costner said with this motion, AEP/SWEPCO is asking for a post hoc amendment of the application they submitted for APSC approval – a do-over of the statement of public need and reasons for the proposed project.
“In effect, this is AEP/SWEPCO’s admission that STO’s expert witness, Dr. Hyde Merrill, was correct in his assessment: the public need identified in AEP/SWEPCO’s application does not exist and, even if such a need did exist, the proposed project would not be required to meet it,” Costner said. “SWEPCO is asking APSC to replace their now disproven statement of need with their witnesses’ testimonies, which include a new needs study that allegedly establishes previously unidentified public needs that require the construction of a 50-mile long, 345-kilovolt transmission line and Kings River Station.”
Costner said this new study was submitted in sur-surrebuttal (the end of a series of legal debates back and forth) so that STO has had no access, and indeed has been blocked from obtaining, the data and analysis the study is based on.
“In short, STO has had no opportunity to examine and refute AEP/SWEPCO’s new needs study,” she said.
Also, AEP/ SWEPCO and the APSC judge and attorney opted not to question STO’s expert witnesses during the hearing. Costner said this move had the effect of preventing STO from eliciting more information by questioning its own experts.
The motion filed by AEP/SWEPCO quotes APSC rules that state, “Any party to a proceeding, with the permission of the Commission and in the furtherance of justice, may amend any pleading to conform to relevant testimony before the record is declared to be closed and the matter is submitted to the Commission for decision. Amendments offered prior to the hearing shall be served on all parties and then filed with the Commission.”
The motion states that on the final day of the hearing, AEP/SWEPCO made the oral motion on the record to be allowed to respond to all relevant testimony entered without objection during the proceeding. After opposition to the motion on grounds it was not sufficiently specific, SWEPCO clarified it wished to conform the pleadings to the proof such that the application would be amended to include all of the testimony that was offered by Paul Hassink (AEP) and Lanny Nickell (Southern Power Pool) as to the need for this project, specifically to the testimony that was offered by the River Oaks intervenors, by the Mitchell & Spencer intervenors, by the Coughlin family and Jackson intervenors.
“This written motion seeks precisely the same modification to conform the Certificate of Environmental Compatibility of Public Need (CECPN) application to reflect the evidence, both written and oral, that was presented without objection at the hearing in this docket, but also includes the testimony of Arkansas Electric Cooperative Corp (AECC) witness Ricky Bittle,” the motion states. “In particular the application should be deemed amended to incorporate all the written and oral testimony of J. Paul Hassink, Ricky Bittle, and Lanny Nickell as the statement of the need and reasons for construction of the facility.”
The motion said the testimonies of witnesses Hassink, Bittle and Nickell are highly relevant to the need for this transmission project. “Their written and oral testimonies added detail to and additional support for the project need, over and above the recitations of need in the application and the direct testimony of witness Hassink,” AEP/SWEPCO states.
AEP/SWEPCO also moved to amend pleadings to conform to the testimony related to re-routes requested by the River Oaks, Mitchell & Spencer, Coughlin family and Jackson intervenors. “Testimony by the individual intervenors seeking modifications to the proposed route is also extremely relevant to this proceeding,” the motion said.
AEP/SWEPCO argues that the court should freely permit an amendment when doing so will aid in presenting the merits and the objecting party fails to satisfy the court that the evidence would prejudice that party’s action or defense on the merits.
The court may grant a continuance to enable the objecting party to meet the evidence.
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