PSC rejects rehearings on Turk

AEP/Southwestern Electric Power Co. and the staff of the Arkansas Public Service Commission went four for four in opposing requests by opponents of the John W. Turk, Jr., Power Plant for rehearings before the PSC in a comprehensive order filed by the Commission.

The March 13 order forecloses further opposition before the Commission by private member hunting clubs and landowners controlling some 16,000 acres of property near the Turk site near Fulton and McNab.

Intervenors sought to have the PSC essentially reverse itself on every aspect of its findings for SWEPCO’s Certificate of Environmental Compatibility and Public Need for the $1.6 billion coal-fired power plant and three electrical power line transmission corridors connected with the project.

“The Commission agrees with the arguments stated by both Staff and SWEPCO in their responsive pleadings in opposition to the Applications for Rehearing of the Smith Intervenors, the Johnson and Turner Intervenors, and the HC (Hempstead County Hunting Club) Intervenors identified hereinabove,” the order states. “Therefore, the Commission hereby denies said Applications for Rehearing.”

The order is signed by all three current members, PSC Chairman Paul Suskie, and commissioners Colette D. Honorable and Olan W. “Butch” Reeves.
The PSC granted a CECPN for the Turk plant in November, 2007, over the objections of the intervenor parties, and denied a December, 2007, rehearing petition on the CECPN. Two of the three sitting commissioners at the time have since left the commission. Judge David Newburn served in an interim capacity, and Commissioner Darryl Bassett’s term expired.

The filing lodged by intervenors in its February 19 petition objects to specific aspects of 12 different orders issued by the PSC in connection with the general docket for the project involving the CECPN permit, and applications for three transmission line projects affiliated with it.
Intervenors challenged the Commission’s orders as not having been rendered with “substantial evidence and made in the pursuit of the Commission’s regular authority.”

That argument was challenged in a scathing response by the PSC staff to the intervenor’s February rehearing motion.
“Because of the hyperbole involved, Staff will address specifically a few of the arguments in the Application,” the PSC staff response states.
First, PSC staff argues that intervenors were wrong about being denied procedural rights before the PSC.

“For example, Intervenors HCHC now argue that they were denied the opportunity to present evidence as a result of the orders granting intervention, but intervenors HCHC could have filed prepared testimony on September 19, 2008, pursuant to the procedural schedules of Order No 6 (Docket No. 08-001-U), Order No. 5 (08-002-U), and Order No. 2 (08-098-U) and they likewise could have cross-examined adverse witnesses at the evidentiary hearings,” the staff states. “Even though all witnesses were excused from the hearing, that happened as a result of unanimous agreement of all parties and because there were no controverted questions to be decided.”

The PSC staff also challenges the contention that the PSC used the wrong standard to make evaluation decisions.
“Next, Interventors HCHC argue that the Commission failed to use the proper standard to evaluate alternative proposals for the transmission lines, including an alleged failure to evaluate a ‘no build option,’” the staff states. “There is no mandate in Arkansas statutory or regulatory law that requires or even references a ‘no build’ option and the Application provides no support for this argument.”

PSC staff also notes that HCHC specifically argues a lack of notice to which they believed themselves entitled regarding transmission line dockets, but pointed out in filing notes where SWEPCO had given proof of that notice.

“Once again, this argument is without a legal basis: All notice to which Intervenors HCHC were entitled was afforded to them,” the staff filing stated.
The staff filing accuses all classes of intervenors with simply attempting to attack the PSC’s decisions without providing a basis for the PSC to take judicial notice of any underlying reason.

“The Applicant’s arguments are the same arguments made by these same intervenors repeatedly,” the staff notes. “Staff has responded before and the same responses still hold true. Thus this Application is simply another in a long line of collateral attacks of prior Commission decisions, which are impermissible.”