PUBLIC SERVICE COMMISSION OF WEST VIRGINIA CHARLESTON

Transcription

1 PUBLIC SERVICE COMMISSION OF WEST VIRGINIA CHARLESTON At a session of the PUBLIC SERVICE COMMISSION OF WEST VIRGINIA in the City of Charleston on the 19* day of November CASE NO E-C DONNA PRINTZ Martinsburg, Berkeley County THOMAS and KATHY HILDEBRAND Marmassas, Virginia JOHN COLEMAN Saint George, Tucker County, PAULA STAHL, Parsons, Tucker County, Complainants, TRANS-ALLEGHENY INTERSTATE LINE COMPANY, a public utility, Defendant. COMMISSION ORDER The Commission (i) sets this matter for hearing and (ii) addresses motions to compel, dismiss, and the requests for additional information. Case No E- CN BACKGROUND On August 1, 2008, the Commission entered a Final Order in Case No E-CN granting a certificate of convenience and necessity to the Trans-Allegheny Interstate Line Company (TrAILCo), authorizing construction of a 500 kv electric transmission line, subject to certain conditions regarding, among other things, rights-of-way. On February 13,2009, the Commission issued an Order on Reconsideration. Among other things the Commission rescinded the decision in its Final Order to hold compliance Charleston

2 hearings in regards to this project. The Commission questioned the efficiency of the compliance hearing process, noting that it duplicates the existing and continuing jurisdiction of the Commission to entertain disputes through its formal complaint process on the question of whether compliance has been accomplished. The Commission stated: Therefore, the Commission will not require a compliance hearing in this case. Instead, the Commission will require TrAILCo to file a verification that it has met the preconstruction conditions including supporting detail demonstrating compliance. The Commission notes that removing the compliance hearing requirement does not obviate the need for TrAILCo to comply with all conditions established in this Order or the Final Order and that failure to meet these conditions may be brought to the attention of the Commission through the Commission complaint process. Order on Reconsideration, p. 14. Present Case On October 19, 2009, Donna Printz, Thomas and Kathy Hildebrand, and John Coleman (Complainants) filed a complaint against the Allegheny Energy and its subsidiary, the Trans-Allegheny Interstate Line Company (collectively, TrAILCo), alleging that TrAILCo has violated the laws of the State by: (A) Clearing of all vegetation across the full width of the 200 foot right-ofway, including at stream crossings, contrary to the application approved by the Final Order, The application filed in Case No E-CN states that The right-of-way will be cleared to a nominal width of 150 feet centered on the right-of-way, but in practice TrAILCo has removed all vegetation to a width of 200 feet or more in Hardy and Tucker Counties. TrAILCo has not provided streams with the maximum protection possible and has removed nearly all vegetation from some stream crossings, violating the intent of the Final Order, and Allegheny Energy guidelines (document MS ). TrAILCo has allowed clearing equipment to enter the streams in contravention of the Final Order, at page 57, and in violation of Class I11 clearing as specified in MS (regarding vegetation remaining outside the conductor path). (B) Clearing of vegetation beyond the approved right-of-way width, contrary to the application approved by the Final Order, Charleston 2

3 At several locations in Tucker County TrAILCo has cleared a right-of-way that is wider than authorized by the Commission (e.g., 350 feet on the North Branch of the Potomac River, near Fairfax Stone; 350 to 400 feet on the west slope of Backbone Mountain; both in areas proposed for the transmission line described in the PATH proceeding (Case No E-CN).) (C) Clearing of all vegetation in valley bottoms where conductor height is greater than one-hundred feet, and in particular, noncompliance with section IV.C.2.(a) ( Areas with 100 feet or more conductor-to-ground clearance will not be cleared. ). The Complainants asked that the Commission require TrAILCo to halt all activity on the TrAIL transmission line until it demonstrates an intention to obey Commission Orders regarding forest clearing. The Complainants specifically requested that the Commission implement the following remedies: 1. A limit to clearing for the TrAIL right-of-way to 150 feet in width as specified in Allegheny s application (Appendix D, page 6). Clearing to the full 200 foot of the right-of-way to be limited only to locations where it has been demonstrated that it is necessary for the safe and reliable operation of the line. as specified in the TrAILCO Application (Appendix D). The halt of all right-of-way clearing greater than a 200 foot width. 2. An immediate and permanent halt, in all counties, to cutting of all timber above 1 inch diameter breast height (DBH) for sight lines or right-ofways in areas where conductors will be 100 feet or more above the ground. 3. A halt to all survey, right-of-way, or any other clearing along the TrAIL route in a11 counties until all portions of the route that will have a 1 OO-foot or more conductor-to-ground clearance (no-clear portions) have been identified through GIS or other analysis. 4. Provision to the petitioners of a plan by Allegheny Energy for fully and honestly implementing the PSC Order of August 1,2008 concerning clearing of right-of-way where the conductor-to-ground clearance exceeds 100 feet and where the right-of-way crosses streams. 5. Provision to the petitioners evidence that right-of-way agreements with landowners will incorporate clear-cutting related conditions of the PSC Orders as committed to by Allegheny in the PSC Order of August 1,2008 (page 73). I Charleston 3

4 6. Provision to the petitioners, in paper and digital form, of 1 inch = 500 feet scale maps of all no-clear portions of the route based on analysis of the topography and tower placement planned by TrAIL. The Complainants stated TrAILCo is not complying with the Conditions of its certificate, specifically in relation to TrAILCo promises concerning right-of-way (ROW) clearing. The Complainants state that TrAILCo is clearing an area wider than proposed and also clear cutting areas where the conductor clearance will be greater than 100 feet. The Complainants request TrAILCo be limited to clearing the ROW to 150 feet in width, be prohibited from clearing in areas where the conductor will be greater than 100 feet from the ground, and other measures that ensure TrAILCo will follow the conditions as outlined in the Commission Order. On October 27,2009, the Commission received a letter from Paula Stahl requesting to join this complaint. Ms. Stahl previously stated her complaint in a protest letter that she filed in relation to the TrAILCo petition to reopen its certificate case, Case No, E- CN, for Commission approval of certain routing changes. Ms. Stahl is concerned about the potential impact of the TrAIL project to her water source. On October 28,2009, TrAILCo filed its Answer to this complaint. TrAILCo stated that the majority of the timbering activities discussed in the complaint were conducted at the direction of the landowners, and not by TrAILCo. TrAILCo was not consulted regarding the timing, nature, or scope of the activity. TrAILCo stated that it has conducted some limited timbering activities in areas where the conductor will be more than 100 feet from the ground for the purpose of creating sight lines for survey work. On November 23, 2009, Commission Staff filed its Initial Joint Staff Memorandum requesting information from TrAILCo regarding property owner information and recommending that Ms. Stahl s filing in Case No E-CN be addressed in this proceeding. On Januaiy 1 1, 2010, TrAILCo filed a Motion to Compel responses to its first set of discovery requests served November 1 1, Interrogatory Nos. 1-5 sought the identity of persons claimed by the Complainants to have removed vegetation in five particular locations. The Complainant response (filed January 1 1, 20 10) to the Interrogatory stated that TrAILCo committed to certain clearing practices on this project and that TrAILCo was either violating the ROW-clearing requirements themselves or had failed to enter into ROW contracts with landowners that would bind the landowners to the clearing practices imposed by the Conmission. The Complainants also asserted that they were not required to provide information to TrAILCo that they had maintained as private among themselves. On January 19,20 10, the Complainants filed a Summary Statement stating that there are two primary components to the complaint: (i) TrAILCo contractors cut forty-foot wide sight lines while conducting survey work, in a manner contrary to industry practice and the Charleston 4

5 Commission directives in Case No E-CN7 and (ii) timber cutting for development of the rights-of-way was contrary to the Commission directives in Case No E-CN. On January 21, 2010, the Complainants filed a response to the January 11, 2010 Motion to Compel filed by TrAILCo. Regarding Interrogatory Nos. 1-5 the Complainants stated that they had seen a sign at a cleared site stating that TrAILCo was the responsible party and in other instances spoke to individuals living near the cleared areas who had identified the companies working in the area. In response to Document Request No. 2 (communications with other persons concerning the complaint), the Complainants stated that they had inquired of others about joining the complaint but received no response, and therefore held no responsive documents. In response to Document Request No. 4 (communications with others, including property owners, concerning clearing of land associated with TrAIL) the Complainants described verbal communications with property owners and documentation and photographs from a chartered flight over cleared properties, and stated that no additional responsive documents are available. On April 14,20 10, Staff filed its Final Joint Staff Memorandum, based on (i) review of the documents in the file, (ii) meeting with the Complainants and Ms. Stahl, and (iii) onsite and aerial inspections of the TrAIL project. As part of its analysis, Staff created a document collecting the Commission requirements and conditions placed on TrAILCo in the Final Order and Order on Reconsideration. Staff concluded the following in regards to the substantive issues raised by the Complainants and Ms. Stahl: ROW clearing where conductor height is expected to exceed 100 feet. The requirement of the Order states: Areas with 100 feet or more conductor-to-ground clearance will not be cleared. Staff found no instances where TrAILCo or any of its contractors have violated this provision of the Order, with the possible exception where forty-foot survey lines were cleared by TrAILCo contractors. Staff stated that the forty-foot clearings are more than is necessary for surveying, but not as much as would be expected for siting a transmission line. Staff concluded that there was no violation, although the question hinges on the interpretation of the term cleared as used in the Joint Stipulation. Width of the ROW. The Route Evaluation Report, Appendix D of the TrAILCo certificate application, stated that The line will be constructed in West Virginia on the center of a 200-foot ROW acquired by TrailCo as easements across private land or as special use permits on government-controlled property. The ROW will be cleared to a nominal width of 150 feet centered on the ROW or as deemed necessary for the safe and reliable operation of the line. Staff noted that (i) the evidence supporting the filing indicates that any portion of the ROW could be cleared if it was deemed necessary for the safe and reliable operation of the line and (ii) there are no specific requirements contained in any provisions of the Commission Order mandating a maximum ROW clearance width of 150 feet. The filing simply describes the cleared width to be a nominal 150 feet. Charleston 5

6 3. Ms. Stahl water source concerns. Staff stated that Ms. Stahl s spring is close to a proposed tower location, and it appears that an impact to the spring is possible. Staff recommended TrailCo provide Ms. Stahl with reasonable accommodations in a written, binding form regarding the potential impact to her water source, although Staff stated that this issue may lie outside the direct jurisdiction of the Commission. 4. Truck traffic on local roads. Staff observed a considerable difference between the roads being used by TrailCo contractors and those without truck traffic. Staff stated that it will not be possible to eliminate an impact on the roads during construction. Staff recommended that TrailCo continue to monitor its contractors and take corrective actions if necessary to mitigate impacts from truck traffic, including strict inspection and compliance during the post-construction restoration phase. 5, Alleged violations of Allegheny Power internal vegetation management standards, specificallv with regard to Class I, 11, or I11 clearing techniques. Staff asserted that what it appears from a visual observation that all vegetation was removed, Le., clear-cut, it is possible that many of the forested areas originally contained no smaller vegetation beneath them because the larger tree canopy prevents growth of the smaller species. Once the large trees are removed, the ground underneath will appear as if it has been clear-cut, when in fact there were little or no smaller species present in the first place. Staff stated that the intention of TrAILCo to follow selective clearing techniques on a continuing basis is a reasonable approach. 6. TrAILCo obligation as to land clearing activities of property owners. Staff stated that (i) individual landowners have the right to do with their property what they wish, (ii) the Commission has no jurisdiction over the property of the landowners, (iii) Cornmission jurisdiction is limited to the utility, and (iv) the Commission has no power to require the utility to bind landowners to only use their land in the manner proscribed by the Commission in its conditions regarding ROWS. On April 2 1, 20 10, Complainant John Coleman filed a letter stating that TrAILCo failed to follow the Commission Orders regarding: 1. Excessive clearing during some centerline surveys that included clearing of forest timber in a 40 foot swath that extended to valley bottoms and across streams. In at least some cases, without informing landowners of the true nature of their proposed activities. 2. Clearing by TrAILCo s subcontractor Supreme Industries of the 200+ foot right-of-way to the bare ground and across valleys in Hardy County, as documenied by company exchanges and photographs. Charleston 6

7 3. Surveying of right-of-ways so as to enable private land owners to clear Allegheny Energy s TrAIL and PATH right-of-ways in ways that were contrary to the PSC orders. No attempt was made to communicate the clearing conditions of the PSC orders to those land owners. This was documented in surveyor notes and statements obtained during discovery. 4. Removal of all vegetation across the full 200+ width of the right-of-way in many situations, contrary to TrAILCo s commitment that Class I clearing would not be conducted in West Virginia. The commitment that Class I clearing will not be used was made in documents dated 2/5/2009, prior to the final PSC order of 2/13/2009, and was repeatedly distributed by TrAILCo staff. Mr. Coleman requested the following additional relief in this case: 1. That TrAILCo immediately initiate forest restoration in the right-of-way through revegetation with trees so as to bring all of its right-of-ways into compliance with what TrAILCo applied for and was authorized in the PSC orders of August 2008 and February That a hearing be scheduled to fully evaluate TrAILCo s implementation of the PSC orders and TrAILCo s level of compliance with the permits it obtained for clearing and construction. 3. That TrAILCo and its parent company Allegheny Energy compensate the taxpayers of the State for damage to public roads during line construction, immediately repair damaged roads such as Co.Rt 9 at Fairfax Stone, and compensate residents for reduced access to their property due to damage to public roads. On April 23, 2010, Complainant Donna Printz filed a request for hearing. The Complainants asked for an opportunity to present evidence of TrAILCo violations of the PSC Orders, and that the photographs attached in to our complaint were only examples of perceived violations and did not represent the entire extent of the complaint. The filing continued: Based on further investigation by the complainants we believe that violations of the PSC Orders are more extensive than originally identified in our complaint of October 13, However, in order to make a hearing most productive, the Complainants request that the PSC compel TrAILCo to provide information as to what areas were cleared by TrAILCo or its contractors. Charleston

8 The Complainants further stated that (i) clear cutting on the ROW constitutes clear cutting (Class 1 clearing specifications), (ii) the clearing widths are from 200 to 400 feet, (iii) ROW clearing beyond 150 feet is inconsistent with the TrAILCo application with the Commission, (iv) no evidence is available to support the Staff contention that areas that appear to be clear-cut may not have had any smaller vegetation prior to clearing, (v) TrAILCo used a 1 50-foot clearing width to claim that in West Virginia, only 1,737 acres of forest would be converted to grassland, and (vi) the TrAILCo claim that any clearing contrary to Commission directives, was conducted by others and outside the control of TrAILCO, and is impossible to verify without documentation as to who conducted the clearings along the route. On April 28,2010, TrAILCo filed a Response to the request for hearing filed by the Complainants. TrAILCo asked that the Commission deny the request for a hearing and dismiss this case, stating that the Complainants (i) have no evidence to substantiate their claims, (ii) maintain the untenable notion that TrAILCo is required to bind landowners to the timbering and other conditions to which TrAILCo agreed, and (iii) wish to turn this proceeding into a general inquisition. On April 30,20 10, the Complainants filed further information in support of its case, including claims of improper clear cutting, failure to follow erosion-control best management practices, and improper clearing and erosion-control along streams. On May 5,2010, the Complainants filed a document titled North River Crossings: Clear-cut TrAIL Right-of- Way regarding clearing and construction at crossings of the North river in support of their request for a hearing concerning the lack of compliance with Commission Orders and permits obtained by TrAILCo. On June 3,20 10, Paula Stahl filed a letter stating her concern over the possible impact of the TrAIL project on the spring that is the source of her water. Ms. Stahl noted that the assurances received from TrAILCo thus far address where she taps her spring but not where the spring originates. Ms. Stahl asked that the Commission follow the Staff-recommendation and require written assurances from TrAILCo to protect her source of drinking water. On June 8,20 10, the Complainants filed a Motion to Compel a response to their First Discovery Requests. Discovery Request No. 10 asked TrAILCo to define the term Class 1 Clearing as used in Allegheny ROW clearing specification (MS ) and identify and produce maps or drawings of all areas along the TrAILCo right-of-way designated as Class 1 Clearings. Discovery Request Nos. 11 and 12 asked for the same information in regards to Class 2 and Class 3 Clearings. The Complainants stated that (i) the TrAILCo response to the data request - that TrAILCo would provide some of the information requested but objected because the request was unduly burdensome and expensive - does not detail how the request is burdensome and expensive, and (ii) the information is relevant to show that right-of-way clearing activity by TrAlLCo is contrary to the Commission Final Order and the testimony filed by TrAlLCo. Charleston 8

9 On June 8,20 10, the Complainants filed a Clarification on Prickett Cr. and North R. Filings stating that the information filed by the Complainants on April 30 and May 5,20 10, were filed in support of their original complaint. On June 9, 2010, TrAILCo filed an Objection to Complainants Third Discovery Requests and Response to the Complainant Motion to Compel stating that the Complainants are attempting to prolong this case and are attempting to turn this proceeding into a compliance hearing. Specifically, TrAILCo stated that the Motion to Compel was filed six months after the TrAILCo response to the Complainant First Discovery Request and therefore is not timely filed, as required by the CommissionRules ofpractice and Procedure, 150 CSR f. On June 9,20 10, the Complainants filed a compact disk with photographs in support of the complainants contention that TrAILCo has ignored the ROW conditions of the Commission Orders, the CAD stipulations, and the basic description of its project as it relates to clearing across streams and valleys, the use of selective clearing in West Virginia, and requirements in regards to minimal disturbance in right-of-way clearing, particularly near waterways. On September 20, 2010, Ms. Stahl filed a letter asking to join in the other Complainant filings made September 8,2010. She also described the current condition of her spring and the impact caused by towers constructed in the area. Ms. Stahl Hearing DISCUSSION Ms. Stahl will be made a party to this case. The Commission will set this matter for hearing. The parties should understand the position of the Commission regarding the purpose and limitations of this proceeding. 1. The Final Order and the Order on Reconsideration are no longer subject to appeal to the West Virginia Supreme Court of Appeals and therefore the Commission will not entertain suggestions by any party that the conditions set forth in those Orders should now be modified. 2. The hearing is limited to (i) whether TrAILCo and its contractors (a) are violating or have violated material conditions of the Final Order and the Order on Reconsideration in regards to right-of-way clearing and maintenance of the TrL41L Project, andor (b) are engaging or have engaged in unreasonable utility practices subject to the jurisdiction of the Commission in regards to right-of- Charleston 9

10 way clearing and maintenance of the TrAIL Project, and (ii) the concerns raised by Ms. Stahl. 3. All claims of violations of the Final Order or the Order on Reconsideration presented at hearing must reference the specific condition that TrAILCo and its contractors are alleged to have violated. 4. The Complainants carry the burden in this complaint case to prove that violations have occurred. TrAILCo Motion to Compel The January 11, 2010 Motion to Compel, filed by TrAILCo appears to have been resolved by the January 2 1, Complainants response and therefore no Commission action is necessary. Complainants Motion to Compel Notwithstanding the timing of filings by the parties, the Commission concludes that it is reasonable to directly address the substance of the request, The Commission will limit the data responses to which TrAILCo must respond to those raised in the Complainant Motion to Compel, and as further modified by the Commission below. Specifically, the Complainant Motion to Compel requested that TrAILCo provide answers to request Nos. 10, 11, and 12. The first part of each of the three data requests asked for a definition of a Class 1 Clearing, Class 2 Clearing, and Class 3 Clearing, respectively. TrAILCo provided the requested definitions. The second part of each of the requests asked that TrAILCo [ ildentify with specificity all areas along TrAlLCo s right-of-way in West Virginia which were of that particular class of clearing and to produce all related maps or drawings. It is not necessary that TrAILCo provide &l related maps and drawings, but the Commission will require that TrAILCo provide maps or drawings showing with specificity, all areas along the TrAILCo right-of-way in West Virginia that were cleared by TrAILCo or its contractors, for each the three classes of clearing. TrAILCo shall provide this information to the Complainants within twenty days of the date of this Order. It appears that the parties have completed the discovery phase of this case based on the lack of discovery propounded in this matter over the last several months, In the event that the parties wish to engage in further discovery, the Commission will require that it be narrowly focused. Further, all remaining discovery requests must be propounded within ten days of the date of this Order. TrAILCo Motion to Dismiss The April 28, 2010 TrAILCo motion to dismiss is denied as the Commission has determined that it is reasonable to hear this matter. Public Senrice Commission Charleston 10

11 /I Ms. Printz 's Motion for Information Regarding Areas Cleared by TrAILCo As part of her April 23, 2010 request for a hearing, Ms. Printz requested that the Commission compel TrAILCo to provide information as to what areas were cleared by TrAILCo or its contractors. The Commission notes that such information is more properly sought by a party through the use of discovery, as described in Procedural Rule However, the Commission decision regarding the Complainant Motion to Compel renders this request moot. FINDING OF FACT. The Complainants claim (i) violations of the Commission Final Order and Order on Reconsideration regarding right-of-way clearing and maintenance, and (ii) concern over the impact of construction and operation of the TrAIL Project on the water spring serving Ms. Stahl. CONCLUSIONS OF LAW 1, A hearing will assist the Commission in sorting through the facts alleged by the parties to thi: case, 2. Data responses by TrAILCo limited to those requests described in the Complainant Motion to Compel and as limited by the Commission in the Discussion section of this Order, will provide sufficient information regarding right-of-way clearing and maintenance conducted by TrAILCo and its contractors. 3. The TrAILCo Motion to Dismiss is denied. The Commission requires additional information in this matter. 4. Ms. Printz's request that the Commission compel TrAILCo to provide additional information was rendered moot by the Commission decision regarding the Complainants Motion to Compel. Pubhc Semce Comrmssion of West Vxgrua Charleston 11

12 ORDER IT IS THEREFORE ORDERED that this matter, as described and as limited in the Discussion section of this Order, is set for hearing to be held on January 13 and 14, , beginning at 9:30 a.m., in the Howard M. Cunningham Hearing Room, 201 Brooks Street, Charleston, West Virginia. IT IS FURTHER ORDERED that Ms. Stahl is made a party to this case. IT IS FURTHER ORDERED that the January 1 1, Motion to Compel filed by TrAJLCo is dismissed as resolved. IT IS FURTHER ORDERED that TrAILCo respond to the request Nos. lo(a), 11 (a), and 12(a), as described and as limited in the Discussion section above, within twenty days of the date of this Order. IT IS FURTHER ORDERED that any additional discovery must be promulgated within ten days of the date of this Order. IT IS FURTHER ORDERED that the TrAILCo motion to dismiss is denied. IT IS FURTHER ORDERED that Ms. Printz s request that the Commission require TrAILCo to proyide certain information is moot. IT IS FURTHER ORDERED that the Executive Secretary of the Commission serve a copy of this Order by electronic service on all parties of record who have filed an e-service agreement, by United States First Class Mail on all parties of record who have not filed an e-service agreement, and on Staff by hand delivery. Chairman. Michael A. Albert is recused in this case. JJWls c.wpd Charleston 12