PUBLIC SERVICE COMMISSION OF WEST VIRGINIA CHARLESTON APPLICANTS THIRD OMNIBUS RESPONSE TO PETITIONS TO INTERVENE

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1 PUBLIC SERVICE COMMISSION OF WEST VIRGINIA CHARLESTON CASE NO E-CN PATH WEST VIRGINIA TRANSMISSION COMPANY, LLC PATH ALLEGHENY TRANSMISSION COMPANY, LLC PATH-WV LAND ACQUISITION COMPANY and PATH-ALLEGHENY LAND ACQUISITION COMPANY Joint application for certificates of public convenience and necessity under W. Va. Code a authorizing the construction and operation of the West Virginia segments of a 765 kv electric transmission line and related facilities in Putnam, Kanawha, Roane, Calhoun, Braxton, Lewis, Upshur, Barbour, Tucker, Preston, Grant, Hardy, Hampshire, and Jefferson Counties, including modifications to the Amos Substation in Putnam County and a new substation in Hardy County, and for related relief. APPLICANTS THIRD OMNIBUS RESPONSE TO PETITIONS TO INTERVENE Applicants respond pursuant to CSR to the petitions to intervene filed by: Pamela C. Dodds, Ph.D., and Arthur W. Dodds, Jr.; Howard Straight; Timothy S. and Dawn H. Thomas; Jay Stephen and Mary Elizabeth Robinson; West Virginia Energy Users Group ( WVEUG ); County Commission of Tucker County; and Rachelle Channeli. Relevant Procedural History Applicants seek certification under W. Va. Code a for their respective portions of approximately 225 miles of a 765 kv electric transmission line ( PATH ) and related I Applicants have responded separately to the petitions to intervene filed by Timothy L. Hairston (Response filed June 1); Dr. and Mrs. Jon F. Gregoryk; Ray Joseph Funkhouser; Katherine F. Funkhouser, CPA; Allyson Marley; Sandra L. Henry; David A. Turner; and Timothy W. and Teresa L. Tumblin (First Omnibus Response filed June 2); Paul L. Chamblin; June Robin Huyett Thomas; Karen Bohrer Evans; Laura Robertson and Peter Vila; Gary and Pamela Gearhart; Keryn Newman; Sierra Club, Inc., and West Virginia Highlands Conservancy; Virginia Lynch Graf, D, Min. and Robert A. Graf, D. Min.; Debbie Royalty; Bill Howley; Ronzel and Alison Haverty; the County Cornmission of Jefferson Ccunty; snc! Barbm Humes (Secend Omnibus Respcnse f;,!ed June e).

2 facilities in Putnam, Kanawha, Roane, Calhoun, Braxton, Lewis, Upshur, Barbour, Tucker, Preston, Grant, Hardy, Hampshire, and Jefferson Counties. Applicants have requested that the Commission certify PATH s construction on a typical 200-foot right-of-way at any point within the corridor lying 1,100 feet on either side of PATH s centerline (a 2,200-foot corridor) as proposed in the application. Govemiw Rule and Its Application Rule 12.6 of the Commission s Rules of Practice and Procedure governs interventions. Any person having a legal interest in the subject matter of any hearing or investigation pending before the Commission may petition for leave to intervene, and the Commission will not grant leave to intervene except on allegations reasonably pertinent to the issues already presented and which do not unduly broaden them. CSR a. When two or more intervenors have substantially similar interests and positions, the Commission may, in order to expedite the hearing, limit the number of parties who may cross-examine, make and argue motions, or object on behalf of such intervenors. CSR d. In its application of the Rule, the Commission considers whether a petitioner s position or interest is unique. See Monongahela Power Company and The Potomac Edison Company, Case Nos E-42T and E- D, Commission Order, January 26, 2007, at 3-4. These principles were recently noted in Appalachian Power Company and Wheeling Power Company, Case No E-GI, Commission Order, May 21, 2009, page 3, where the Commission stated that a petition must explain how its members interests are not sufficiently represented by one or more of the existing intervenors. The Commission can reasonably expect to receive dozens of petitions to intervene in this case. In order to ensure an orderly and efficient development of the evidence, the Commission (C I } 2

3 simply must limit the number of individuals who will be accorded party status to those who demonstrate a recognizable legal interest in the subject matter as provided in Rule In addition, Rule 12.6 provides that in a case of this magnitude the Commission should require parties with substantially similar interests to coordinate their efforts. The Commission can best apply its rule on petitions to intervene and the principles it has articulated in prior cases as reviewed above on an issue-specific basis. If a petitioner demonstrates an adequate, individual interest on a particular issue to the Commission s satisfaction, then he or she should be accorded intervenor status, but only to the extent of that individual interest. While the Commission should continue to respect everyone s right to address any issue through correspondence or statements at public comment hearings, the Commission should exercise its discretion to appropriately delineate the extent to which individuals can participate as formal parties in the evidentiary portion of this proceeding. Issues Based On Proximity to PATH Several petitions cite the proximity of residential or other property to PATH. The issues raised in this context include health effects and the effect that PATH will have on the market value or attractiveness of real estate. However, none of the petitioners to date has proffered any specific expertise on health effects or real estate valuation. As the Commission determines how best to apply its standards, Applicants respectfully suggest that the Commission limit intervention on these issues to individual petitioners (i) who demonstrate that they own or reside on property within the 2,200-foot corridor for PATH S Proposed Route or (ii) who demonstrate that they have particular qualifications as the result of formal education, training or experience to address these specific issues or other issues that may be expected to arise during the course of this proceeding. The Commission should deny individual intervenor status if the petitioner 3

4 cannot demonstrate that he or she owns or resides on property within the 2,200-foot corridor or has particular qualifications as the result of formal education, training or experience to address alleged health effects, the market value or attractiveness of real estate or other such specific issues. For example, it appears that Dr. Dodds is qualified to address issues of geology and hydrogeology, and that Ms. Channell is qualified to inform the Commission about the psychological issues raised in her petition. Applicants have reviewed the petitions to intervene and Applicants own information about the relative locations of the petitioners property and the Proposed Route. Based on that review, Applicants can represent to the Commission that Dr. and Mr. Dodds, Mr. and Ms. Thomas, Mr. and Ms. Robinson, and Ms. Channell (by virtue of her power of attorney in respect of her parents property) all reside or own property within the 2,200- foot corridor, while Mr. Straight, to the best information of Applicants, does not reside or own property within the 2,200-foot corridor. There may also be particular issues that the Commission may determine justify intervention on behalf of a group of individuals. For example, Mr. Straight, like several previous petitioners, has cited the Proposed Route s proximity to schools as grounds for intervention, and there are likely to be other such petitions filed in this proceeding. Obviously, granting individual party status to each staff member and parent or grandparent of a current or potential student would be unworkable. Applicants respectfully suggest that the Commission, in the event it determines to grant intervention, should require these petitioners to participate in the evidentiary portion of this proceeding through a designated spokesperson with formal education, training or experience in the particular issues to be addressed. An example of how interests of similarly situated people can be addressed other than through individual intervention is provided by the petition of the County Commission of Tucker (CI I} 4

5 County, which seeks to intervene on behalf of the citizenry of that county in respect of their concerns about health, safety, welfare, and property values. Applicants do not oppose intervention by the County Commission of Tucker County. The petition of the WVEUG, discussed below, likewise exemplifies how the interests of similarly situated people or entities can in this way be more efficiently addressed. Rate Impact Several petitions assert that certification of the PATH Project will lead to an increase in the retail price of electricity. Applicants must note that neither their rates nor those of any other public utility are the subject of this proceeding. But, in any event, residential ratepayer interests as such are already represented by the Consumer Advocate Division ( CAD ), which filed its petition to intervene on May 18, 2009, noting its legal authority to represent the State s residential electric consumers. Constituents can share with the CAD any information that they believe to be relevant to the protection of their interests as residential ratepayers, but they should not be granted intervenor status on the basis of this issue. Applicants do not oppose the intervention of the WVEUG. Its members are not residential customers represented by the CAD. The concerns expressed in the WVEUG s petition go beyond rate impact to include the reliability and quality of service to some of West Virginia s largest industrial employers. Need Many petitions assert that there is no need for the PATH Project, or that Applicants have failed to adequately demonstrate need. The question of need requires consideration of national energy policy, the application of federally-mandated NERC Reliability Standards, and other complex analyses that do not lend themselves to lay exposition. (Even the Commission s Staff jcl I } 5

6 addressed the issue of need through the testimony of retained expert witnesses in Trans- Allegheny Interstate Line Company, Case No E-CN.) Applicants respecthlly suggest that intervention should not be granted on the issue of need unless a petitioner demonstrates substantial expertise and qualifications in this complex area. Indirect Environmental Effects Dr. and Mr. Dodds and Ms. Channell, like several previous petitioners, assert that certification of the PATH Project will increase the combustion of coal for the generation of electricity, and thus have a deleterious effect on the environment. Applicants reserve their right to contest these assertions, both factually and as a matter of law under W. Va. Code la. For now, however, Applicants request that the Commission deny intervention on this issue unless a petitioner demonstrates that he or she is qualified through formal education, training or experience to litigate such issues before the Commission. Conclusion Several of the petitions are not only similar, but appear to have been copied from a form, underscoring the fact that most of the petitioners concerns are not unique. Even if some individual petitions to intervene are denied, evidence concerning these issues will still be addressed to the Commission by Staff, the CAD, or perhaps another party with particular perspectives or expertise. The Commission can and should limit intervenor status as required by its rules and decisions in prior cases. The Commission should further require all individuals granted intervenor status on the basis of substantially similar interests to coordinate their efforts throughout this proceeding, which will streamline the development of evidence and facilitate its presentation at the evidentiary hearing. 6

7 For the guidance of all concerned and the benefit of the intervention process, Applicants request that the Commission consider these recommendations and rule on the pending petitions to intervene at its first opportunity. Respectfully submitted this 15th day of June, PATH WEST VIRGINIA TRANSMISSION COMPANY, LLC PATH ALLEGHENY TRANSMISSION COMPANY, LLC PATH-WV LAND ACQUISITION COMPANY and PATH-ALLEGHENY LAND ACQUISITION COMPANY By Counsel Philip MelickfWVSB #2522) Christopher L. Callas (WVSB #5991) James Robert Alsop (WVSB #9179) James M. Davis (WVSB #10820) JACKSON KELLY PLLC Post Office Box 553 Charleston, WV (724) (304) Randall B. Palmer, Assistant General Counsel Jeffrey Trout, Senior Attorney Jennifer Petrisek, Senior Attorney Allegheny Energy, Inc. 800 Cabin Hill Drive Greensburg, PA Kevin F. Duffy, Assistant General Counsel James R. Bacha, Assistant General Counsel Janet J. Henry, Associate General Counsel American Electric Power Service Corporation 1 Riverside Plaza Columbus, OH (614) Charles E. Bayless, Counsel Appalachian Power Suite Virginia Street, East Charleston, WV (304) CERTIFICATE OF SERVICE I certify service of APPLICANTS THIRD OMNIBUS RESPONSE TO PETITIONS TO INTERVENE on June 15, 2009 by United States mail, postage prepaid, upon: John Auville, Esq. Public Serv. Com n of WV Post Office Box 8 12 Charleston, WV Dr. and Mrs. Jon F. Gregoryk Old Cave Road David A. Sade, Esq. Consumer Advocate Division 700 Union Building 723 Kanawha Boulevard, East Charleston, WV Katherine F. Funkhouser, CPA 1370 Earle Road Timothy L. Hairston 197 Marshall Avenue Westover, WV Raymond Joseph Funkhouser 1370 Earle Road {C I) 7

8 Timothy and Teresa Tumblin 4624 Summit Point Road Sandra L. Henry 2399 Summit Point Road Summit Point, WV Karen Bohrer Evans 1060 Old Cave Road Charles Town. WV Keryn Newman 6 Ella Drive Shepherdstown, WV Debbie Royalty 199 Brannon Ln. James Casimiro, 111, Esq. Jefferson Co. Pros. Office P. 0. Box 729 County Corn n of Jeflerson Cty. Timothy and Dawn Thomas 264 Sanctuary Lane Derrick Price Williamson, Esq. Adam L. Benshoff, Esq. McNEES WALLACE & NURICK LLC P. 0. Box 116 Harrisburg, PA West Va. Energy Users Group Rachelle Channel1 P. 0. Box 908 Belington, WV David A. Turner 907 Old Cave Road Paul L. Chamblin Leetown Road Kearneysville, WV Laura Robertson, Peter Vila 137 Hinton Road Kearneysville, WV William V. DePaulo, Esq. 179 Summers Street, Suite 232 Charleston, WV Sierra Club, Inc. nnd West Va, Highlands Conservancy Bill Howley PO Box 3 Chloe, WV Barbara Humes PO Box Harpers Ferry, WV Howard Straight 77 Chatham Ct. Charles Town. WV Susan J. Riggs, Esq. SPILMAN THOMAS & BATTLE, PLLC Spilman Center 300 Kanawha Blvd., East Charleston, WV West Va. Energy Users Group Allyson Marley 907 Cave Road June Robin Huyett Thomas 165 Sesame Street Charles Town. WV Gary and Pamela Gearhart 140 Smokey Bear Trail Harpers Ferry, WV Virginia Lynch & Rob t A. Graf 2054 Kabletown Road Ronzel and Alison Haverty HC 75 Box 7 Chloe, WV Dr. Pamela & Mr. Arthur Dodds P. 0. Box 217 Montrose. WV Jay and Mary Robinson 292 Fairview Drive William M. Miller, Esq. Tucker Co. Pros. Att y Street, Suite 4 Parsons, WV County Corn n of Tucker Cty. - 0 John Philid Melick 1 jcl I 8