STO seeks rehearing, too: Opposition group says APSC ignored law in its approval

Friday, March 21, 2014 ~ Updated 10:00 AM

EUREKA SPRINGS -- Grassroots opposition group Save The Ozarks on Tuesday filed with the Arkansas Public Service Commision documents requesting a complete rehearing of Southwestern Electric Power Co.'s application to build some 50 miles of 345,000 Volt 150-foot-tall power lines through Benton and Carroll counties.

SWEPCO on Friday filed a similar request but is seeking only a "limited rehearing" on the sole topics of the APSC judge's ruling that Route 33 was "unreasonable" and that Route 109 -- the utility's least-preferred route, going through Missouri -- was approved. The utility also is seeking clarification on some of the judge's directives from her late January decision.

STO, on the other hand, is seeking a complete rehearing based on numerous issues, arguing in its filing late Tuesday that the commission's decision to allow the power line along SWEPCO's Route 109 is "arbitrary and unreasonable, contrary to Arkansas and federal law, contrary to ... due process, is not supported by substantial evidence, and is unjust."

APSC Administrative Law Judge Connie Griffin announced her approval of SWEPCO's project in Orders 32 and 33 following the utility's April 2013 application to construct about 50 miles of transmission lines, each 150 feet tall and requiring an herbicide-cleared right-of-way 150 feet wide along the route.

Order 32, issued by Griffin on Jan. 17 of this year, granted SWEPCO approval of its application but only along Route 109, its least-favored route. It begins at the Shipe Road station in Benton County, runs north, enters Missouri and turns eastward through McDonald and Barry counties for about 25 miles, and then re-enters Arkansas and traverses western Carroll County -- running just north of Eureka Springs and crossing Highway 23 north just below Holiday Island near the intersection with Highway 187. The Missouri portion of the route is proving a challenge as lawmakers in that state immediately began to fight the proposal in the state Legislature.

Order 33, issued by Griffin on Jan. 21, stated that the two remaining route alternatives, Routes 33 and 108, are "not reasonable."

In its pleading entered Friday, SWEPCO asks for a limited rehearing only on the subjects of the selection of Route 109 and the deeming of Route 33 as unreasonable. The utility also is asking for clarification of some of the judge's directives in Order 32.

"They want a rehearing limited specifically to Route 33 and whether it is reasonable," explained Pat Costner, founder and director of grassroots opposition group Save The Ozarks. "They do not want the whole ball of wax reconsidered."

In its petition filed Tuesday afternoon with the APSC, Save The Ozarks attorney Mick Harrison begins his 45 pages of arguments by noting that Arkansas law requires SWEPCO to obtain the relevant environmental permits before any hearing and to "submit said permits with its application so the commission may consider these permits prior to deciding whether to deny or grant approval to build the lines."

However, that has not been done in this case, Harrison notes, and those facts are undisputed, as several of SWEPCO's witnesses at the August hearing held in Little Rock acknowledged that multiple environmental permits that are required for the project had not yet been obtained. (Some of them appeared to be impossible to obtain at any point in the future, as organizations such as the U.S. Army Corps of Engineers have publicly warned that it would not allow the power lines to be built over Corps property, including Table Rock Lake -- which lies on at least three of the original six proposed routes that were proposed by SWEPCO.)

Regardless, Harrison argues in STO's filing that the lack of the required environmental permits constitutes an incomplete application on SWEPCO's part and it should never have even been considered without them, in accordance with state law and past Supreme Court rulings on the issue.

"Because SWEPCO has not yet obtained these required permits and has not submitted such permits for review by the commission, SWEPCO has not complied" with Arkansas law, and consequently, the commission should have denied SWEPCO's application, STO's filing says. "Its failure to do so is contrary to law."

Its second major argument says that while state law requires that SWEPCO's Environmental Impact Study, submitted with its application, must assess adverse impacts on parks, recreation areas and historic sites. But the commission approved SWEPCO's application -- contrary to the law, STO argues -- despite the fact that records show that federal as well as state agencies have unresolved and unaddressed concerns regarding the project's adverse impacts.

"The SWEPCO EIS and application have obvious defects and omissions in failing the address impacts on Army Corps properties including impacts on lakes and rivers," the STO filing states. "It is undisputed that the SWEPCO EIS fails to address erosion and sedimentation issues relating to Corps properties stemming from potential loss of vegetation, loss of Bald Eagle roosting habitat, impacts to cultural resources, and the aesthetic impacts from a 150-foot right-of-way. SWEPCO has not sat down with the Army Corps to attempt to address the Corps' concerns about such adverse environmental impacts and omissions in the EIS."

Furthermore, several state agencies have also expressed similar concerns regarding impacts to parks, recreation areas, and historic sites, the filing states, and "many of these agency concerns have yet to be resolved."

For these reasons, the commission's decision to grant approval to the SWEPCO project is contrary to law, STO argues.

Other issues brought up in STO's arguments include:

* SWEPCO's failure to seek the appropriate and required approvals in Missouri for the portion of Route 109 that runs in that state; such approvals are required by law before the project should be approved, under state law, STO says;

* SWEPCO's failure to notify all landowners along all routes -- including the one in Missouri -- as required by law;

* SWEPCO's failure to provide public notice of its proposal in a local newspaper, and in any newspaper in Missouri, as required by law;

* SWEPCO's failure to demonstrate a need for the project, as required by law -- when in fact, records indicate that even SWEPCO did not believe the project was needed until Southwest Power Pool instructed the utility to proceed with the project; and

* SWEPCO's failure to submit a complete, accurate analysis of the projected economic and financial impact on the local community, instead submitting a "one-sided analysis that ignored the adverse impacts and addressed the positive economic impacts only."

"With the Save The Ozarks' petition for rehearing, STO attorney Mick Harrison has made it clear SWEPCO sees itself as being above a number of Arkansas laws," said Costner late Tuesday. "It remains to be seen if the three APSC commissioners will stand by Judge Griffin's decision or stand up for the laws of Arkansas. Will they allow SWEPCO to thumb their noses at the rules, regulations and laws of the state of Arkansas, giving them the power to take private property so they can build this unneeded, unwanted superhighway of a transmission line? We hope not, but we won't count on hope alone."

The commissioners must rule on both parties' rehearing requests within 30 days, according to state law. After that, the next step will be appealing any forthcoming decision deemed as unfavorable to the Arkansas Court of Appeals, and ultimately to the Arkansas Supreme Court -- both of which have previously overruled the Public Service Commission in several cases involving similar disputes.

"The Court of Appeals has overruled the APSC before and we feel we have good cause to expect them to do it in this case," Costner added.

"Who knows, maybe some of our elected officials will stand up for us like the three legislators in Missouri. Maybe they'll see that the APSC is in need of more than a few changes and a lot more oversight."

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