Minnesota Public Utilities Commission Staff Briefing Papers Meeting Date: March 16, 2017... Agenda Item *7 Company: Docket No. Enbridge Energy, Limited Partnership PL-9/CN-14-916 In the Matter of the Application of Enbridge Energy, Limited Partnership for a Certificate of Need for the Line 3 Pipeline Replacement Project in Minnesota from the North Dakota Border to the Wisconsin Border PL-9/PPL-15-137 In the Matter of the Application of Enbridge Energy, Limited Partnership for a Route Permit for the Line 3 Pipeline Replacement Project in Minnesota from the North Dakota Border to the Wisconsin Border Issues: What action should the Commission take concerning the Department of Commerce request for direction related to the scheduling and format of the public information meetings that are required under Minnesota Rules 7852.1300, subp. 1B and 4410.2600, subp. 2? Staff: Scott Ek 651-201-2255 scott.ek@state.mn.us Background Documents Department of Commerce Letter Requesting Commission Direction Regarding Public Information Meetings... February 15, 2017 Department of Commerce Supplemental Information... February 22, 2017 Enbridge Energy, Limited Partnership Comments... February 27, 2017 Minnesota Chamber of Commerce Comments... March 3, 2017 United Association Comments... March 3, 2017 Mille Lacs Band of Ojibwe Comments... March 3, 2017 Friends of the Headwaters Comments... March 3, 2017 Laborers District Council Comments... March 3, 2017 Honor the Earth Comments... March 3, 2017 This document can be made available in alternative formats (e.g., large print or audio) by calling 651-296-0406 (voice). Persons with hearing loss or speech disabilities may call us through their preferred Telecommunications Relay Service.
Staff Briefing Papers for Docket No. PL-9/CN-14-916 and PL-9/PPL-15-137 on March 16, 2017 Page 2 Attachments Department of Commerce Map Showing Option 1 and Option 2 Meeting Locations The attached materials are work papers of the Commission staff. They are intended for use by the Minnesota Public Utilities Commission and are based upon information already in the record unless noted otherwise. I. STATEMENT OF THE ISSUES What action should the Commission take concerning the Department of Commerce request for direction related to the scheduling and format of the public information meetings that are required under Minnesota Rules 7852.1300, subp. 1B and 4410.2600, subp. 2? II. PROJECT DESCRIPTION The Line 3 Pipeline Replacement Project (Line 3 Project) proposed by Enbridge Energy, Limited Partnership (Enbridge) is described as a new 337-mile long 36-inch diameter pipeline that would replace 282 miles of the existing 34-inch Line 3 pipeline in Minnesota. The existing Line 3 pipeline would be permanently deactivated in-place after the new pipeline is installed, tested, and operational. Associated facilities would include eight pumping stations, valves, metering and monitoring equipment, and related electrical facilities. Enbridge s proposed pipeline route would cross portions of Kittson, Marshall, Pennington, Polk, Red Lake, Clearwater, Hubbard, Wadena, Cass, Crow Wing, Aitkin, and Carlton counties. III. STATUTES AND RULES 7852.1300 Public Information Meetings (Pipeline Route Permit) Subpart 1. Requirements. The commission shall hold public information meetings as provided in this subpart.... B. Before public hearings held to consider the routes accepted for consideration by the commission, the commission shall hold a public information meeting in each
Staff Briefing Papers for Docket No. PL-9/CN-14-916 and PL-9/PPL-15-137 on March 16, 2017 Page 3 county through which a route is proposed to explain the route designation process, present major issues, and respond to questions raised by the public. Subpart 2. Notice of public information meetings. Published notice of the date, time, and location of public information meetings shall be placed in a newspaper in each county in which a route is proposed at least ten calendar days before the public information meeting. 4410.2600 Draft EIS (Certificate of Need and Pipeline Route Permit)... Subpart 2. Review and comment; informational meeting. When the draft EIS is completed, the RGU shall make the draft EIS available for public review and comment and shall hold an informational meeting in the county where the project is proposed.... Subpart 7. Contents of published notices. The notice of availability in the EQB Monitor and the press release shall contain notice of the date, time, and place of the informational meeting, notice of the location of the copy of the draft EIS available for public review, and notice of the date of termination of the comment period. Subpart 8. Time of meeting; transcript. The informational meeting must be held not less than 15 days after publication of the notice of availability in the EQB Monitor. A typewritten or audio-recorded transcript of the meeting shall be made. Subpart 9. Public comment. The record shall remain open for public comment not less than ten days after the last date of the informational meeting. Written comments on the draft EIS may be submitted any time during the comment period. 7829.3200 Other Variances Subpart 1. When granted. The commission shall grant a variance to its rules when it determines that the following requirements are met: A. enforcement of the rule would impose an excessive burden upon the applicant or others affected by the rule; B. granting the variance would not adversely affect the public interest; and
Staff Briefing Papers for Docket No. PL-9/CN-14-916 and PL-9/PPL-15-137 on March 16, 2017 Page 4 C. granting the variance would not conflict with standards imposed by law. Subpart 2. Conditions. A variance may be granted contingent upon compliance with conditions imposed by the commission. Subpart 3. Duration. Unless the commission orders otherwise, variances automatically expire in one year. They may be revoked sooner due to changes in circumstances or due to failure to comply with requirements imposed as a condition of receiving a variance. IV. PROCEDURAL HISTORY On February 1, 2016, the Commission issued an order that, among other procedural items, directed the Department of Commerce to prepare a combined environmental impact statement (EIS) that addresses issues related to the Line 3 Project certificate of need and routing permit dockets in accordance with Minnesota Statutes Chapter 116D and Minnesota Rules Chapter 4410. On April 11, 2016, the Department of Commerce published notice of availability of the Environmental Assessment Worksheet (EAW) and the Draft Scoping Decision Document (DSDD) for the Line 3 Project pursuant to Minnesota Rules Chapter 4410. Between April 25 and May 11, 2016, the Department of Commerce conducted 12 EIS scoping meetings in 10 different counties to obtain oral and written comments on the DSDD. 1 A comment period was open through May 26, 2016. On November 30, 2016, the Commission issued an order that, among other procedural items, approved the EIS Scoping Decision; and forwarded one system alternative, four route alternatives, and 24 route segment alternatives for further consideration at the public hearings. On December 5, 2016, the Department of Commerce issued the EIS Scoping Decision and published the EIS Preparation Notice in accordance with Minn. R. 4410.2100. On February 15, 2017, the Department of Commerce filed a letter with the Commission that requested direction on the scheduling and format of the public information meetings required under Minn. R. 7852.1300, subp. 1B and 4410.2600, subp. 2. On February 17, 2017, the Commission issued a notice soliciting comments from intervening parties on the Department s letter with a comment deadline of March 3, 2017. 1 EIS scoping meetings were held in: Pine, Morrison, Polk, Pennington, Beltrami, Hubbard, Carlton, Ramsey, Clearwater, and Aitkin counties.
Staff Briefing Papers for Docket No. PL-9/CN-14-916 and PL-9/PPL-15-137 on March 16, 2017 Page 5 On February 27, 2017, Enbridge filed comments in response to the Department of Commerce letter. On March 3, 2017, Comments in response to the Department of Commerce letter were received from the following parties to the proceeding: Minnesota Chamber of Commerce, United Association, Mille Lacs Band of Ojibwe, Friends of the Headwaters, Laborers District Council, and Honor the Earth. Five comment letters were also received from members of the public. V. DEPARTMENT OF COMMERCE LETTER The Department has requested direction from the Commission as it relates to the number and format of the public information meetings required under Minn. R. 7852.1300, subp. 1B and 4410.2600, subp. 2. The Department indicated in its February 15, 2017 Letter that it intends to hold combined meetings to satisfy the two meeting requirements outlined in rule. The Department also indicated that it intends to provide a three week time frame to complete the required meetings in order to comply with the 60-day schedule set forth by the administrative law judge. 2 The Department has determined that at least 35 separate meetings would need to be conducted over the course of a three-week period in order to comply with the rule requirements of holding an information meeting in each county through which a route is proposed. Therefore, the Department developed two different options to provide information and obtain meaningful input on the content of the draft EIS while still considering the rule requirements and the procedural schedule. Option 1: As described by the Department, this option would entail conducting at least 35 meetings 3 within 15 days (three weeks). The format would be an open meeting setting that would allow for oral public comment. The time allowed for each public commenter would be limited depending on the number of speakers. Persons would be allowed to return to the podium to make additional comments if time remained and everyone who wanted to speak has had the opportunity. A court reporter would be present to transcribe the comments. Option 2: As described by the Department, this option would entail conducting 14 meetings within the three week period. The number of meetings and locations were chosen based on areas within a 45 mile driving distance from larger population centers, areas where there has been 2 Office of Administrative Hearings, Second Amended Third Prehearing Order (October 31, 2016), Document ID 201610-126100-01. 3 One meeting in each county through which a route is proposed (22 meetings) including system alternative SA-04 (13 meetings).
Staff Briefing Papers for Docket No. PL-9/CN-14-916 and PL-9/PPL-15-137 on March 16, 2017 Page 6 heightened public interest, and the location of tribal reservations. The meetings would follow an interactive open house format over the course of an afternoon and evening and would include displays corresponding to information in the draft EIS, informational handouts, and the ability to submit written comments and to provide oral comments to one or more stationed court reporters. Because this option would not comply with the requirement to hold an information meeting in each county through which a route is proposed, the Commission would need to authorize a variance to Minn. R. 7852.1300, subp. 1B. Staff notes that the Department did not indicate a preference for either option and did not specifically request a variance that would be needed for Option 2. The Commission may want to ask the Department if it has a preference for one of the options. VI. COMMENTS OF INTERVENING PARTIES Staff has summarized the comments received in this matter. For more detail, the comment letters should be reviewed as filed. A. Enbridge Energy, Limited Partnership Enbridge provided comments in response to the Department s February 15 Letter and the supplemental information. In summary, Enbridge: Agreed with the Department that public information meetings are not required along the system alternative SA-04 because it is an alternative relative to the certificate of need matter and meetings are not required for other certificate need alternatives (e.g., crude oil trains, truck, alternative pipelines). Therefore, Enbridge recommended that the Commission clarify that no public meetings are required in counties crossed by system alternative SA-04. Pointed out that the Commission granted a similar variance to Minn. R. 7852.1300, subp. 1A and 1B in the Sandpiper Pipeline Project due to the pipeline crossing only a few miles in some counties. Argued that public interest would be best served by holding meetings in convenient and accessible venues, rather than strictly adhering to a county-by-county approach, and that the former is of greater benefit to the public and would not adversely affect the public s ability to effectively participate. Therefore, Enbridge recommended that the Commission grant a variance to Minn. R. 7852.1300, subp. 1B. Indicated support for the interactive open house format presented in Option 2 as the most effective means to gather comments on the draft EIS and answer questions from the
Staff Briefing Papers for Docket No. PL-9/CN-14-916 and PL-9/PPL-15-137 on March 16, 2017 Page 7 public, regardless of whether the Commission grants a variance to the requirement to hold public information meetings in each county crossed. B. Minnesota Chamber of Commerce The Minnesota Chamber of Commerce argued that requirements of the rules in question would, require meetings in one-third of Minnesota s 87 counties. Accordingly, to hold public meetings in each of these counties would be a significant burden on all parties involved. Thus, the Minnesota Chamber of Commerce indicated support for the Department s Option 2. C. United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO (United Association) The United Association indicated support for the Department s Option 2. The United Association also pointed out that the Commission has granted a variance to this rule in the Sandpiper Pipeline Project under similar circumstances. The United Association maintained that meetings held under the Option 2 format would: Balance the interests of the public and the parties in terms of accessibility and efficient use of resources. Last longer than the town hall style meetings, where speakers make oral comments one after another, giving interested parties more time to participate within the constraints of their own schedules. Be more flexible and would allow for greater involvement by a larger number of people than the town hall style meetings that primarily focus on individual speakers. D. Mille Lacs Band of Ojibwe The Mille Lacs Band of Ojibwe indicated that it does not object to the Department s Option 2, so long as one such meeting is held at the East Lake Community Center near McGregor, Minnesota. 4 The Mille Lacs Band of Ojibwe asserted that the Commission only has the authority to vary its own rules under Minn. R. 7829.3200 and, therefore, remains obligated to conduct an information meeting in the county where the project is proposed as set forth under Minn. R. 4410.2600. 4 Staff notes that the map provided by the Department with its supplemental information indicates that Option 2 would include a meeting in McGregor, Minnesota.
Staff Briefing Papers for Docket No. PL-9/CN-14-916 and PL-9/PPL-15-137 on March 16, 2017 Page 8 E. Friends of the Headwaters Friends of the Headwaters indicated support for Department s Option 1. Friends of the Headwaters maintained that it is important for members of the public to hear what others citizens have to say which would not be possible with Option 2. Friends of the Headwaters also suggested that the large number of meetings required under Option 1 would result in a lower attendance per meeting making the meetings more manageable. Further, Friends of the Headwaters recommended that meetings also be held along system alternative SA-04. F. Laborers District Council of Minnesota and North Dakota (Laborers District Council) The Laborers District Council indicated support for Department s Option 2. In summary, the Laborers District Council: 1) maintained that Option 2 complies with the Commission s legal requirements and would better facilitate participation; 2) argued that Option 1 would create a substantial burden by making it difficult for the Laborers District Council and other parties to affectively participate due to the large number of meetings; 3) pointed out that the open house format of Option 2 encourages greater participation from those uncomfortable with public speaking and is less exclusionary than Option 1; and 4) did not recommend holding meetings along system alternative SA-04. G. Honor the Earth Honor the Earth indicated support for Department s Option 1 that meetings should be held in every county crossed by the existing Line 3 pipeline route, the proposed pipeline route, and all alternative routes being considered including system alternative SA-04. Honor the Earth argued that the Pollution Control Agency and the Department of Natural Resources should conduct the public information meetings. Honor the Earth maintained that at least one meeting should be held in the city of Bemidji, Minnesota. Honor the Earth indicated that it does not favor an open house format (Option 2) and believes that type of format is not effective for public participation. At the same time Honor the Earth did not agree with setting time limits for speakers, as would be necessary under the Department s Option 1. H. Public Citizen Comments In addition to the comments received from the intervening parties, the Commission also received a number of comments from public citizens or citizen groups during and after the comment period. 5 Generally, the citizen comment letters indicated support for the Department s Option 1 5 Jamie Gaither (2/16/17) Document ID 20173-129701-02 ; Residents of Big Sandy Lake: Brad and Susan Gudenkauf, Miki and Kevin Berg, Janet and Gary Hill, Cindy Kadrlik Furrer, David and Nancy Claussen, and
Staff Briefing Papers for Docket No. PL-9/CN-14-916 and PL-9/PPL-15-137 on March 16, 2017 Page 9 of having information meetings in every county in which a route crosses including system alternative SA-04. A couple of the letters also mentioned the Minnesota 2016 Civic Engagement Plan which originated from the Governor s Executive Order 15-02, that established the Diversity and Inclusion Council. The Engagement Plan does not generally provide a template for the conduct of public information meetings in certificate of need and route permit proceedings, but rather encourages agencies to handle such meetings in a way that will facilitate meaningful civic engagement, as the Department of Commerce is attempting to accomplish in this case through its Option 2 proposal. VII. STAFF DISCUSSION A. Number and Location of Meetings At issue is whether the Commission should vary its rule, 7852.1300, subp. 1B, that requires a public information meeting in each county through which a route is proposed... Varying this rule would, in part, allow the Department to hold the proposed number of meetings in the locations developed under its Option 2. However, these public information meetings are also being held to meet the Environmental Quality Board (EQB) requirements under Minn. R. 4410.2600, subp. 2, that requires an informational meeting in the county where the project is proposed. Therefore, absent a varying of that rule by the EQB pursuant to Minn. Stat. 14.055, staff believes the Department would still be required to conduct meetings in each county where the Applicant s proposed route crosses. A Commission decision to vary its public meeting rule would allow the Department to proceed with its Option 2 proposal with regard to the alternative routes that Enbridge does not propose for Line 3. Despite the issues related to varying the relevant public meeting rules, staff believes the public interest and the ability to effectively participate would best be served by holding meetings in venues and locations that are accessible and accommodating for such an event, rather than adhering to a county-by-county approach which can be limiting and effectively reduce overall participation. Past meetings for this and similar projects have drawn larger than average crowds, and not all counties with communities near the proposed routes have suitable facilities to host such meetings. With Option 2, the Department has developed a fair and rational list of locations that takes into consideration: driving distance, population centers, and suitable meeting facilities. Staff believes this approach meets the spirit of public participation contemplated by the Commission s rules in this case. Therefore, to allow the Department flexibility in scheduling meetings related to proposed alternative routes, staff recommends that the Commission vary the Susanne Weiss Waterman and Mathew Waterman (3/3/17) Document ID 20173-129701-02; Willis Mattison (3/3/17) Document ID 20173-129626-01; John Munter (3/3/17) Document ID 20173-129701-02; and James Reents: Northern Water Alliance of Minnesota (3/6/17) Document ID 20173-129660-01.
Staff Briefing Papers for Docket No. PL-9/CN-14-916 and PL-9/PPL-15-137 on March 16, 2017 Page 10 public meeting rule in accordance with Minn. R. 7829.3200, and allow the Department to implement Option 2, as it relates to meetings along alternative routes and system alternatives. Staff believes the requirements for varying Minn. R. 7852.1300, subp. 1B, are met as follows: Enforcing the in-county meeting requirement would impose an excessive burden upon the public, upon parties to the proceeding, and upon state agency staff because there may not be suitable locations within a certain section of a county to hold a public meeting. Staff would be forced to conduct meetings that may be in unsuitable venues and in areas located far away from the proposed project just to meet the requirement. Varying the in-county meeting requirement would not adversely affect the public interest and would in fact serve the public interest by allowing meetings to be located in suitable venues, in areas near and conveniently spaced along the proposed route alternatives. Varying the in-county meeting requirement would not conflict with any other standards imposed by law. B. Format of Meetings As for the format of the meetings, the Department provided in Option 1, the more traditional open meeting that simply allows citizens a set amount of time, dependent upon the number of speakers, to speak in front of other participants while being transcribed by a court reporter. The Department also provided Option 2. Although it is not an entirely new approach to public meetings, the Option 2 format would be more interactive allowing the public to personally engage with the agencies that are involved with permitting the various aspects of the project, receive more detailed answers to questions from regulatory experts, and provide oral comments to court reporters privately without the need to address a crowd, or alternatively submit written comments. Staff notes that neither Minnesota Rule Chapter 7852 or 4410 provide any requirements on meeting format except that the meetings provide opportunity for the public to review and comment on the draft EIS, learn about the route designation process and associated major issues, with the ability to ask questions. In its February 1, 2016 order, the Commission specifically authorized the Department to administer the EIS process in accordance with Minnesota Statutes Chapter 116D and Minnesota Rules Chapter 4410. That is, the Department is charged with: 1) preparing the draft and final EIS; 2) conducting meetings to allow public review of the draft EIS and to receive comments on
Staff Briefing Papers for Docket No. PL-9/CN-14-916 and PL-9/PPL-15-137 on March 16, 2017 Page 11 that document; and 3) responding to the comments it receives in the final EIS. Therefore, staff believes that the Commission should allow the Department to choose the format of the information meetings that it believes will benefit the public interest and the preparation of the final EIS. ***** COMMISSION DECISION ALTERNATIVES 1. Vary the in-county meeting requirement of Minn. R. 7852.1300, subp. 1B and allow the Department, as it relates to alternative routes, to conduct the number and location of meetings proposed in its Option 2. 2. Do not vary the in-county meeting requirement of Minn. R. 7852.1300, subp. 1B. 3. Request that the Department conduct the information meetings required under Minn. R. 7852.1300, subp. 1B and 4410.2600, subp. 2, in the format proposed in its Option 1. 4. Request that the Department conduct the information meetings required under Minn. R. 7852.1300, subp. 1B and 4410.2600, subp. 2, in the format proposed in its Option 2. 5. Take some other action deemed appropriate.