Wednesday, November 13, 2013
As the year winds down, many local residents opposing American Electric Power (AEP)/Southwestern Electric Power Company (SWEPCO) plans for a 345 kiloVolt line from Shipe Road in Benton County to near the Kings River north of Berryville have been waiting to hear results of the decision from Arkansas Public Service Commission (APSC) Administrative Law Judge Connie Griffin.
Some have been disappointed that a decision hasn’t come yet, but Save The Ozarks (STO) director Pat Costner said it isn’t unusual for cases like this to take a long time before a ruling is made.
“For purposes of comparison, SWEPCO’s application for the Flint Creek-Shipe Road proposal was submitted in August of 2010 and Judge Griffin issued her final decision in April of 2011 – a period of about eight months,” Costner said. “That was a much simpler case because there were no opposing intervenors.”
SWEPCO’s application for a Certificate of Environmental Compatibility and Public Need (CECPN) has drawn dozens of opposing intervenors including the main citizen opposition group, STO, and the cities of Garfield, Gateway, Cave Springs and Springdale. The issue has drawn nearly 6,000 public comments opposed to the project.
The APSC public hearings Judge Griffin presided over in July in Eureka Springs and Rogers drew strong opposition from hundreds of local citizens. The transcript from those hearings was 1,166 pages long, with nearly all citizens opposing the 50-mile-long, $118-million, high-voltage power line. The project would involve clearing a 150-foot right-of-way through some of the most scenic areas of Northwest Arkansas, and erecting massive steel power poles 150 – 160 ft. tall.
The APSC staff has recommended the project be approved. Opponents have alleged that the staff has been open about its support of the project, seeing its role as facilitating applications from power companies, not denying them.
PSC Director John Bethel said the staff gave public comments careful, serious consideration as part of all the evidence staff considered in making recommendation to the commission. He said the staff believes evidence presented by SWEPCO and other proponents of the power line satisfied requirements of the law.
“One of those is, does it represent an acceptable environmental impact?” Bethel asked. “A lot of public comments addressed the environmental impact of the project. It wasn’t that we thought people were wrong or that their concerns were not worthy of consideration. But, certainly, based on the evidence, we believe the application appropriately addressed those issues.”
Bethel said Judge Griffin would view the recommendation of staff on equal footing to the recommendations of various other parties, including the intervenors and applicants.
“Staff testimony is given consideration along with the recommendation of other parties to the docket,” Bethel said. “The judge will take all evidence into account and will make a decision to either grant or deny request for CECPN. That decision will be subject to review by the APSC either on its own, or in response to objections raised by one or more of the parties. If there aren’t any objections raised, the commission can act affirmatively to accept, reject or modify the decision. If there is no action by the commission for 30 days, then the judge’s decision is deemed accepted by the commission. If one of the parties submits an objection to the judge’s order, then the commission would address the substance of those objections either by scheduling additional hearings or simply entering an order in response to those.”
A number of steps have now been completed. Opposing intervenors, including STO, and SWEPCO and their allies – the Southern Power Pool (SPP) and the Arkansas Electric Cooperative Corp. – have filed a series of written documents: direct testimony by experts and other witnesses, rebuttal testimony, and surrebuttal testimony. SWEPCO also filed written sur-surrebuttal testimony, but this was not allowed for opposing intervenors.
A five-day hearing before Griffin took place in Little Rock during late August. Griffin then ordered SWEPCO and the intervenors to file briefs on several key issues and proposed findings of fact by Oct. 1, and file replies to those briefs by Oct. 16. Those briefs and replies are posted in Docket 13-041-U on the APSC website.
“Any day now, Judge Griffin is expected to issue another order scheduling oral arguments on the same issues that were briefed,” Costner said. “If the lead time on oral arguments is about two weeks, oral arguments may take place as soon as mid-November. If the lead time is four weeks, then they may occur in December.”
When Griffin declares the hearing to be closed, she must issue her final decision within 60 days. Costner said if the judge declares the hearing closed on the day she hears oral arguments, this gives a “best guess” of mid-January for her final decision. If she does not declare the hearing closed immediately following oral arguments, she may not do so for many months and may not issue her final decision for many more months.
Bethel said it wasn’t certain that Griffin would issue an order scheduling oral arguments. The last day of the hearing in Little Rock, Griffin said she may ask for oral argument on a couple of matters.
“I know we don’t normally do that,” she said. “This is a little different. This has been a really big case, and I’ve got a lot of things to think about. You’ve put a lot of evidence on. There are a lot of issues that… are new to me at least. Maybe you guys are real comfortable with all of it, but I’d like to hear what you have to say on it.”
There are two important issues Judge Griffin has not yet ruled on. One is STO’s motion to dismiss the application based on legal defects, including SWEPCO failing to obtain the necessary state and federal environmental permits. The second is a motion by SWEPCO to re-do its application, which STO has opposed stating that changing the application now would deprive landowners affected from having proper legal notice and the opportunity to intervene.
“It is not possible to predict if or when she will rule on these motions,” Costner said.
STO has opposed the project, saying it is not needed, that it would harm the fragile karst topography that includes caves and streams, damage water quality and wildlife with herbicides, and cause great harm to the area’s tourism economy. SWEPCO and SPP state that the massive power line must be built to assure the reliability of electrical service in the region.
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