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 1 '' day of November CASE NO E-C RONALD POKRANDT, Looneyville, Roane County, and TIFFANY POKRANDT, Ripley, Jackson County, Complainants, V. TRANSOURCE WEST VIRGINIA, LLC, an electric transmission facility, Roane and Kanawha Counties, Defendant; CASE NO E-C CHRIS DALZELL on behalf of MARGIE DALZELL, Looneyville, Koane County Complainant, V. TRANSOURCE WEST VIRGINIA, LLC, an electric transmission facility, Roane and Kanawha Counties, Defendant; and CASE NO E-CN (REOPENED) TKANSOURCE WEST VIRGINIA, LLC Application for a certificate of convenience and necessity to construct and install transmission facilities in Kanawha and Roane Counties, West Virginia.

2 COMMISSION ORDER The Commission addresses a request to amend the complaint, a motion to compel and a motion for clarification in Case No E-C and schedules an evidentiary hearing. Case No E-CN (certificate case) BACKGROUND On November 19, 2015, Transource WV, filed an application for a Certificate of Public Convenience and Necessity to construct transmission infrastructure originally identified to be built in Clay and Kanawha Counties and referred to as the Thorofare Pro-ject (Project). 'Transource WV is a subsidiary of Transource Energy, LLC (Transource Energy), a transmission-focused joint venture of American Electric Power Company, Inc., and Great Plains Energy, Inc. The Project will consist of the construction of a fifteen-mile transmission line and the installation of two 138kV switching stations requiring three years to complete at a projected cost of $59.5 million. PJM Interconnection ILC has approved the Project and awarded it to Transource Energy, which has assigned the Project to Transource WV. Transource WV requested expedited treatment of the application to begin construction on June 1, Transource WV also requested that the Commission waive the requirement to provide Tariff Rule 42' data with the application. Transource WV filed limited Tariff Rule 42 data, to the extent that data existed, as Exhibit C to its application. On June 29, 20 16, the Commission entered an order granting the application for a Certificate of Public Convenience and Necessity as modified by a Joint Stipulation and Agreement for Settlement entered into by all parties to the case. Transource WV was required to seek Commission consent for any substantial change in the scope of the Project by filing a petition to reopen the certificate case. Transource WV has not sought to reopen the certificate case to seek Commission consent for the changes it made to the Project, namely, the moving of the transmission line. The Commission reopened the case on July 17, 2018, for the limited purpose of reviewing whether there has been a change in the scope of the Project and whether the notice provided in the case was sufficient. The Commission ordered Transource WV to file a report including: 1) a description of the original proposed project, including a map of the proposed line, 2) a description of the project as it currently exists, including a map of the current proposed line overlaid with the original proposed line, and 3) an ' Rule 42 of the Rules for the Construction and Filing of Tariffs, 150 C.S.R. 2 (Tariff Rules). 2

3 explanation as to why it believes the project has not incurred a substantial change in scope from the originally approved project. On July 31, 2018, Transource WV filed a report including a description of the original proposed Project and the Project as it currently exists. Transource WV argued that the final transmission line route and substation locations are within the same general area and the same counties as described in the Notice of Modified Project. I Case No E-C On February 5, 2018, Ronald Pokrandt filed a formal complaint2, including a request for interim relief, against Transource West Virginia, LLC (Transource WV). Mr. Pokrandt alleged that Transource WV is seeking an easement that would allow a transmission line, and possibly other electric lines, to cross his property because of a change in the proposed route of a transmission line approved in Case Nos E-PC and E-CN. Mr. Pokrandt states that he did not receive notice of the change that would now affect his property until May 3, 2017, when a representative of Transource WV informed him the route of the transmission line had changed. Mr. Pokrandt argued that because the change was not addressed in the previous cases or noticed to property owners potentially affected by the change, he was denied the opportunity to object to or comment on the proposed line. Mr. Pokrandt stated that he was aware of the Project since 20 16, but did not comment in the prior cases because the proposed route depicted and described in the public notice was a mile from his property. Mr. Pokrandt requested that the Commission reopen Case No E-CN to allow him the opportunity to protest, comment, or otherwise address the Project reroute and to review the change in the scope of the Project. Additionally, Mr. Pokrandt requested interim relief to prevent Transource WV from gaining entry to his property. On February 15, 20 18, Transource WV filed an Answer. Transource WV denied any wrongdoing. On July 1 1, 20 18, Tiffany Pokrandt, daughter of Ronald Pokrandt and co-owner of the property at issue in Case No E-C, filed a verified formal Complaint against Transource WV and Appalachian Power Company (APCo) (Case No E-C). Ms. Pokrandt requested permission to join Case No E-C. Ms. Pokrandt requested emergency and interim relief prohibiting Transource WV and APCo from proceeding with the petition for condemnation tiled by Transource WV on June 15, 2018, and reopening Case No E-CN to allow Ms. Pokrandt her right to comment and protest in that case. Ms. Pokrandt also requested all other relief requested in Case No E-C and any other relief the Commission deems appropriate. On July 17, 2018, the Commission granted Ms. Pokrandt s request to join her father s case and dismissed Case No E-C. References to Mr. Pokrandt in this Order include both Mr. and Ms. Pokrandt. 3

4 On February 22, 2018, Mr. Pokrandt filed a Response to the Transource WV Answer. Mr. Pokrandt continued to argue that his property was not within the scope of the Project originally approved in Case No E-CN. On March 2, 2018, the Commission ordered the parties in this case and Case No E-C to meet to discuss their differences and file a status report with the C o inm i s s i on. On March 21, 2018, Staff filed a status report entitled Further Joint Staff Memorandum, indicating that the parties met on March 20, 2018, and that negotiations are on-going. The Companies were to provide information to Mr. Pokrandt and Mr. Dalzell by April 2, 2018, with replies coming from the Complainants two weeks later. Staff reported that Transource WV has been given a right of entry for the Dalzell property by a Circuit Judge. On April 16, 20 18, Mr. Pokrandt filed a motion requesting a hearing. On May 21, 2018, Mr. Pokrandt filed a motion to compel responses to his April 16, discovery request. On May 31, 2018, Transource WV filed a response to the motion to compel, stating that it was willing to engage in discussions to resolve the discovery dispute and the substantive issues in this case. Transource WV began condemnation proceedings against Mr. Pokrandt. Filing by Transource WV, June 15, On July 11, 2018, Mr. Pokrandt filed an amendment to his formal complaint requesting emergency and interim relief regarding the Transource WV condemnation proceeding. Mr. Pokrandt included a new Form Number 1, Public Service Commission Complaint form and added Appalachian Power Company as a defendant. On July 17, 2018, the Commission issued an order reopening Case No ;-CN for the limited purpose of reviewing whether there has been a change in the scope of the Project and whether the notice provided was sufficient. The order also closed Case No E-C and made Ms. Pokrandt a complainant in her father s case, and granted Mr. Pokrandt s interim relief request in part by reopening Case No E-CN. On July 23, 20 18, Mr. Pokrandt filed a motion seeking clarification of the July 17, Order. The motion is discussed below. On August 14, 2018, Mr. Pokrandt filed a report on the settlement negotiations. He reported that the parties did not reach an agreement regarding the language in the 4

5 right-of-way agreement or staying the condemnation proceeding in state court. Mr. Pokrandt stated that Transource WV admitted that it would be using optical ground wires (OPGWs), but refused to tell him how many of these wires the company would be using. Mr. Pokrandt argued that Transource WV can sell these wires to telecommunication companies creating a valuable source of revenue to the owners of the wires. Mr. Pokrandt argued that the easement or right-of-way for these OPGWs should be obtained properly instead of surreptitiously. Transource WV confirmed on August 16, 20 18, that it did not reach an agreement with either the Pokrandts or the Dalzells. Transource WV argued that the only issues remaining in Mr. Dalzell s case are the scope and terms of the easement and the proper compensation for the easement. Transource WV argued that these issues are properly before the Circuit Court of Roane County and not this Commission. Case No E-C On February 13, 201 8, Chris Dalzell filed a formal complaint on behalf of Margie Dalzell. Like Mr. Pokrandt, Mr. Dalzell raised concerns regarding the easement sought by Transource WV. Mr. Dalzell also questioned the notice provided and requested a prudence review of the certificated Project pursuant to W.Va. Code b. On March 1, 201 8, Transource WV filed an Answer. According to Staff, Transource WV has been given a right of entry for the Dalzell property. Staff Memorandum, March 2 1, Amended Pokrandt Complaint DISCUSSION Mr. Pokrandt filed an Amended Complaint on July 11, 2018, naming APCo as a defendant and making additional allegations against Transource WV. Mr. Pokrandt stated in his amended complaint that he personally had notice that, in his words, Transource WV would burden his property with tenants by at least December 19, He does not specify in his amended complaint when he learned that Appalachian Power Company (APCo) would be one of those tenants. Mr. Pokrandt has not stated a cause of action against APCo. Furthermore, he filed his complaint with the Commission on February 5, The case has progressed through pleadings, discovery, site visits. and, with this order, an evidentiary hearing. APCo has not been afforded the opportunity to respond to Mr. Pokrandt s Complaint nor has it had the opportunity to participate in the case process including site visits and discovery. Mr. Pokrandt alleges that APCo has participated in this case 5

6 because its employee, Ruby Greenhowe, verified the Transource WV answer. The fact that an APCo employee that works on Transource WV projects verified the answer does not prove that APCo has actively participated in the case. The answer, all discovery, and site visits have been conducted by and on behalf of Transource WV, not APCo. For these reasons, the Commission will deny Mr. Pokrandt's request to add APCo as a defendant in this case. Pokrandt Motion for Clarification of July 17, Order Mr. Pokrandt requests clarification as to why Form No. 1 (a Commission complaint form) was not added to his amended Complaint filed on July 1 1, The form is included in his filing on the Cornmission web docket at pages 26 and Mr. Pokrandt also requests clarification as to why APCo was not added as a defendant in his case. That issue is addressed above. Mr. Pokrandt questions whether the condemnation action can take place at the same time as the cases pending before this Commission. The Commission has no jurisdiction over the condemnation and cannot control whether that condemnation case proceeds. Pokrandt Motion to Compel Mr. Pokrandt filed a Motion to Compel discovery responses to his April 16, 2018 discovery requests on May 21, Transource WV responded to the Motion to Compel on May 31, 2018, and the parties met to discuss the dispute. Mr. Pokrandt identified paragraphs 3, 4, 6, 7, and 12 of the Motion to Compel as remaining in dispute. These paragraphs of the Motion to Compel correspond to the following admissions and interrogatories: A-5 [paragraph 3 of motion] - It is true that Defendant's agent Emerald Energy contacted and conducted negotiations with Complainant unlawfully not being duly licensed/registered to conduct business in West Virginia prior to 12/20/ 17. Transource WV Response - Transource WV is not aware of any unlawful conduct on the part of Emerald Energy. According to the West Virginia Secretary of State's website, Emerald Energy obtained its current West Virginia business license on December 20,

7 A-6 [paragraph 4 of motion] - It is true that the deed for the White property contains a clause identibing a conservation easement including the deed book and page number where it could be found. Transource W Response - Documentation related to the White property speaks for itself. Request 1-2 [paragraph 6 of motion] - Describe in detail what is encompassed by and what if any limitations are imposed by the following clause which is contained in the Easement and Right of Way that the Defendant is attempting to extract from Complainant: electric transmission, distribution, and communication lines and appurtenant equipment and fixtures. Transource WV Response - The document referenced speaks for itself. The Company further states that for practical purposes the referenced documents needs to be sufficiently inclusive to encompass electric utility facilities and equipment required to provide electric service, the specifics of which may change over time due, for example, to technology advancements. Request 1-3 [paragraph 7 of motion] - Describe in detail what is encompassed by and what if any limitations are imposed by the following clause which is contained in the EASEMENT AND RIGHT OF WAY that the Defendant is attempting to extract from Complainant: the right to add to said facilities from time to time, and the right to do anything necessary, useful or convenient.. Transource WV Response - The document referenced speaks for itself. The Company further states that for practical purposes the referenced documents needs to be sufficiently inclusive to encompass electric utility facilities, equipment, and practices required to provide electric service, the specifics of which may change over time due, for example, to technology advancements or changes in utility practices, requirements, or standards. Request 1-12 [paragraph 12 of motion] - Not including substations; in the application for a certificate of convenience and necessity that was tiled on November 19, 2015 or in any of the subsequent filings did the Defendant request to construct anything other than a 13 8kv transmission line. 7

8 Transource WV Response - The application for a certificate of convenience and necessity and all subsequent filings include all the components of the Project. Mr. Pokrandt argued that the responses to Admissions 5 and 6 were unresponsive and, with regard to Admission 5, did not address events prior to December 20, The Commission finds that Transource WV responded to the admissions. Specifically with regard to Emerald Energy, Transource WV stated that it is not aware of any unlawful conduct on the part of Emerald Energy. Requests 1-2 and 1-3 request a legal conclusion and were answered sufficiently by Transource WV. Finally, Transource WV responded to Request The Commission finds that the discovery requests at issue have been answered. The Motion to Compel should be denied. Notice of the Project Notice for a certificate of convenience and necessity shall be published as a Class I legal advertisement in compliance with the provisions of article three [$$ et seq., chapter fifty-nine of this code. The publication area shall be the proposed area of operation. W.Va. Code l(b). The Project, as modified by agreement of the parties, was noticed on May 27, 2016, by legal publication in Beckley, Bluefield, Charleston, Clarksburg, Elkins, Fairmont, Huntington, Keyser, Lewisburg, Logan. Martinsburg, Morgantown, Moundsville, Parkersburg, Point Pleasant, Weirton, Welch, Wheeling, and Williamson. The publication was intended to be statewide which would include the area of operation. Furthermore, the publication in Charleston was made in the Charleston Gazett , a statewide publication, thus covering Kanawha and Roane counties. The notice included the following description of the Project: More specifically, it is recommended that one new transmission station (Coco) be constructed in the City of Charleston approximately 0.5 miles southeast of the intersection of Greenbrier Street and Rutledge Road. Additionally, it is recommended that one new transmission substation be constructed in southern Roane County and approximately 20 to 25 miles of new 138 kv transmission line be constructed in northeast Kanawha County and southern Roane County. It is recommended that this transmission line begin near the Town of Clendenin, generally traverse northward in Kanawha County for approximately five miles, enter southern Roane County, and continue northward for approximately five miles to a new distribution substation (which will be known as Walton and will be constructed by Appalachian Power Company) near the community of Walton. It is recommended that this transmission line exit this distribution substation, turn northeastward, continue for approximately 1 5 miles, and connect to a new, recommended transmission station (Chloe) near the communities of Chloe and Tariff and First Energy s Ivydale-Goff Run 138 kv transmission line.... Further information concerning the Project is 8

9 available in the case file at the Commission [and]..., at the Transource [WV] website for the Project at The notice provided was sufficient and met the statutory requirements found in W.Va. Code (b). The notice filed on May 27, 2016, referenced a map filed in the certificate case on May 18, On that date, Transource WV filed a general map showing the planned location of the transmission line. Additionally, the notice informed the public that protests could be filed with the Commission within thirty days of the published notice. No protests were received. The website link provided in the notice is still active and shows a proposed transmission line, although it is unknown if the line depicted is the original placement or the current placement. The website now also indicates that the line will be approximately twenty-five miles long. Change in Scope of the Proiect Mr. Pokrandt alleged in his complaint and his counter-response to the Answer, that his property. on which Transource WV is seeking a right-of-way to place the transmission line, is outside of the Project area considered, noticed, and approved in the certificate case and, therefore, a change in scope occurred. Complaint filed February 5, 20 18; Counter-response filed February 22, Mr. Pokrandt alleged that the Project website (listed above) shows the 500-foot corridor for the Project to be thousands of feet from his property. Transource WV contends that the currently proposed route for the transmission line is not outside of the scope of the Project approved in the certificate case and meets the description listed in the publication made on May 27, Answer filed on February 15, Throughout the course of the complaint case, the parties positions have remained steadfast. Transource WV argued that the general location of the Project remained in the same counties as noticed in the Notice of Modified Project and the maps provided in Figures 2, 3, and 4 all illustrate the general location of the Project facilities. We note that none of the maps were drawn to scale nor were they intended to be a metes and bounds description of the line location. The parties to the certificate case agreed to a modification of the Project to enhance reliability on APCo s distribution system, The modification added one additional distribution station, to be constructed by APCo, near the town of Walton, West Virginia. Notice of the modified Project was published on May 27, Transource WV argued that the Project has not changed since that time. The Commission reopened the certificate case for the limited purpose of reviewing whether there has been a change in the scope of the Project and whether notice was sufficient. The notice issue has been decided. The Commission will hold an evidentiary hearing to determine whether the deviations onto the Pokrandt and Dalzell properties 9

10 constitute a change in the scope of the certificated Project. Transource WV should come to the hearing prepared to explain why the currently planned route of the transmission line across the Pokrandt and Dazell properties is necessary and does not constitute a change in scope of the Project. FINDINGS OF FACT 1. The Project, as modified by Transource WV and Staff, in Case No E-CN was noticed on May 27, 2016, by legal publication in Beckley, Bluefield, Charleston, Clarksburg, Elkins, Fairmont, Huntington, Keyser, Lewisburg, Logan, Martinsburg, Morgantown, Moundsville, Parkersburg, Point Pleasant, Weirton, Welch, Wheeling, and Williamson. 2. Mr. Pokrandt had individual notice that Transource WV would burden his property with tenants by at least December 19, Amended Complaint. CONCLUSIONS OF LAW 1. Mr. Pokrandt did not assert in his amended complaint a cause of action against APCo. 2. The Commission has no jurisdiction over the condemnation action proceeding against Mr. Pokrandt in the Circuit Court of Roane County, West Virginia, and, therefore, cannot control whether that case proceeds or not. 3. Transource WV answered Mr. Pokrandt s discovery requests A-5, A-6, 1-2, 1-3, and 1-12, The Motion to Compel filed on May 21, 2018, is denied. 4. Notice for the Project that was the subject of Case No E-CN was provided pursuant to W.Va. Code $ l(b). 5. Transource WV should come to the hearing prepared to explain why the currently planned route of the transmission line across the Pokrandt and Dazell properties is necessary and does not constitute a change of scope for the Project certificated in Case NO E-CN. ORDER IT IS THEREFORE ORDERED that Mr. Pokrandt s Motion to Compel is denied. IT IS FURTHER ORDERED that Mr. Pokrandt s request to add Appalachian Power Company as a defendant in this case is denied. 10

11 IT IS FURTHER ORDERED that the Motion for Clarification filed by Mr. Pokrandt has been addressed by this Order. IT IS FURTHER ORDERED that an evidentiary hearing shall be held on Wednesday, December 5, 2018, in the Howard M. Cunningham Hearing Room, Public Service Commission, 20 1 Brooks Street, Charleston, WV 25301, beginning at 9:30 a.m. Transource WV shall come to the hearing prepared to explain why the currently planned route of the transmission line across the Pokrandt and Daze11 properties is necessary and does not constitute a change of scope for the Project certificated in Case NO E-CN. 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. A True Copy, Teste, I/ Ingrid Ferrell Executive Secretary SMS/sm cb.doc 11