S T A T E O F M I C H I G A N BEFORE THE MICHIGAN PUBLIC SERVICE COMMISSION * * * * * In the matter of the application of Michigan ) Electric Transmission Company, LLC for ) Case No. U-17041 a certificate of public convenience and ) necessity for the construction of a transmission) line in Almena Township, Van Buren County, ) and Oshtemo Township, Kalamazoo County, ) Michigan. ) NOTICE OF PROPOSAL FOR DECISION The attached Proposal for Decision is being issued and served on all parties of record in the above matter on April 29, 2013. Exceptions, if any, must be filed with the Michigan Public Service Commission, 4300 West Saginaw, Lansing, Michigan 48917, and served on all other parties of record on or before May 20, 2013, or within such further period as may be authorized for filing exceptions. If exceptions are filed, replies thereto may be filed on or before June 3, 2013. The Commission has selected this case for participation in its Paperless Electronic Filings Program. No paper documents will be required to be filed in this case. At the expiration of the period for filing exceptions, an Order of the Commission will be issued in conformity with the attached Proposal for Decision and will become effective unless exceptions are filed seasonably or unless the Proposal for Decision is reviewed by action of the Commission. To be seasonably filed, exceptions must reach the Commission on or before the date they are due.
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S T A T E O F M I C H I G A N BEFORE THE MICHIGAN PUBLIC SERVICE COMMISSION * * * * * In the matter of the application of Michigan ) Electric Transmission Company, LLC for ) Case No. U-17041 a certificate of public convenience and ) necessity for the construction of a transmission) line in Almena Township, Van Buren County, ) and Oshtemo Township, Kalamazoo County, ) Michigan. )
NOTICE OF PROPOSAL FOR DECISION
The attached Proposal for Decision is being issued and served on all parties of
record in the above matter on April 29, 2013.
Exceptions, if any, must be filed with the Michigan Public Service Commission,
4300 West Saginaw, Lansing, Michigan 48917, and served on all other parties of record on
or before May 20, 2013, or within such further period as may be authorized for filing
exceptions. If exceptions are filed, replies thereto may be filed on or before June 3, 2013.
The Commission has selected this case for participation in its Paperless Electronic
Filings Program. No paper documents will be required to be filed in this case.
At the expiration of the period for filing exceptions, an Order of the Commission will
be issued in conformity with the attached Proposal for Decision and will become effective
unless exceptions are filed seasonably or unless the Proposal for Decision is reviewed by
action of the Commission. To be seasonably filed, exceptions must reach the Commission
on or before the date they are due.
MICHIGAN ADMINISTRATIVE HEARING SYSTEM For the Michigan Public Service Commission _____________________________________ Sharon L. Feldman Administrative Law Judge
April 29, 2013 Lansing, Michigan
S T A T E O F M I C H I G A N
MICHIGAN ADMINISTRATIVE HEARING SYSTEM FOR THE MICHIGAN PUBLIC SERVICE COMMISSION * * * * * In the matter of the application of Michigan ) Electric Transmission Company, LLC for ) Case No. U-17041 a certificate of public convenience and ) necessity for the construction of a transmission) line in Almena Township, Van Buren County, ) and Oshtemo Township, Kalamazoo County, ) Michigan. )
PROPOSAL FOR DECISION
I.
PROCEDURAL HISTORY
This Proposal for Decision (PFD) addresses the July 31, 2012 application of
Michigan Electric Transmission Company, LLC (METC) for a certificate of public
convenience and necessity. The company filed its application under 1995 PA 30, as
amended (Act 30),1 and seeks to construct two double-circuit 138 kV transmission lines
on a 220-foot right-of-way through Oshtemo Township, over approximately seven miles,
with a new electric substation in Almena Township in Van Buren County. The company
filed the testimony and exhibits of eight witnesses in support of its application: Carlo P.
Capra, Jason Sutton, Stephen G. Thornhill, Gary R. Kirsh, Steven J. Koster, J. Michael
Silva, Mark A. Israel, and H. Dwight Mercer.
1 MCL 460.561 et seq.
U-17041 Page 2
Pursuant to notice in accordance with instructions from the Commission, a
prehearing conference was held on September 9, 2012. At the prehearing conference,
METC and Staff appeared, and the following parties appeared and were granted
intervention: Consumers Energy Company; Oshtemo Charter Township; and a group of
property owners jointly represented and referred to collectively throughout the
proceeding as the Landowners. The Landowners group includes: HARCO, LLC; Ken
Irish; Margaret Irish; Jack Kuipers; Jane Kuipers individually and as trustee of the Jane
Kuipers Trust; JMK Holdings, LLC; Doug Maxwell individually and as trustee of the
Doug E. Maxwell 2000 Trust; Micki Maxwell individually and as trustee of the Micki A.
Maxwell Trust; Ward Squiers; and Henrietta Squiers.2
The parties also agreed to a schedule at the prehearing conference.
Subsequently, late intervention was granted to 4110 S. 9th Street, LLC, and the
Terry and Jacqueline M. Schley Trust, by ruling issued October 19, 2012, and reflecting
the stipulation of all parties to the late intervention. Also subsequent to the prehearing
conference, a protective order was issued on October 22, 2012, by consent of the
parties.
On November 7, 2012, at a hearing on the Landowner’s motion to compel
discovery and extend the schedule, the ALJ granted a one-week extension of the
deadline for the Landowners to file the testimony of James R. Dauphinais, and
correspondingly extended the deadline for filing of Staff testimony and rebuttal
testimony.
2 Other individuals were named in the initial petition to intervene filed on behalf of this group, but were not granted intervention at the prehearing conference. See 1 Tr 19.
U-17041 Page 3
Based on this ruling and the schedule agreed to at the prehearing conference,
Oshtemo Charter Township filed the testimony and exhibits of two witnesses, Elizabeth
Heiny-Cogswell and Gregory Milliken, on November 5, 2012;3 the Landowners filed
testimony and exhibits of Mr. Dauphinais on November 14, 2012; Staff filed the
testimony and exhibits of Lynn M. Beck, Naomi J. Simpson, and Steven E. Kulesia on
November 30, 2012; and the company filed the rebuttal testimony of Mr. Capra, Mr.
Sutton, Mr. Thornhill, and Mr. Kirsch on December 18, 2012. At the evidentiary hearing,
by agreement of the parties, the testimony and exhibits were bound into the record.
II.
OVERVIEW OF THE RECORD
The evidentiary record is contained in 365 transcript pages and 137 exhibits,
including exhibits identified by the witnesses as well as other exhibits admitted by
stipulation of the parties.4 This section reviews the testimony presented by the
witnesses, starting first with the direct testimony and then turning to the rebuttal
testimony.
A. METC
Carlos P. Capra, Manager of Regional Planning for ITC Holdings Corp. (ITC),
with a background in engineering, described METC’s system, the electrical
configuration of the proposed lines, and the company’s evaluation of the need for and
benefits of its proposal.
3 The prefiled direct testimony was subsequently amended without objection. 4 Note that several exhibits are duplicates as METC and the Landowners each selected some of the same discovery responses to include in the record.
U-17041 Page 4
He testified that the Kalamazoo area is currently served primarily by three
345/138 kV transformers at the Argenta substation. He explained that National Electric
Reliability Council (NERC) requirements form the basis for the company’s planning, and
that if one of those three transformers is taken out of service for maintenance, the
system must be capable of operating so that no equipment would be overloaded if a
second transformer is lost.5 He testified that the company’s proposed lines and the
additional substation at Weeds Lake would allow METC to comply with the mandatory
NERC planning criteria.
Mr. Capra described two general alternative paths for the lines: one from the
existing Argenta substation east to northern Kalamazoo, the other from Argenta south to
western Kalamazoo, and testified that planning studies showed the path to western
Kalamazoo would result in better system performance. He testified that more detailed
studies were performed by an outside consultant to determine the path to the west of
Kalamazoo that would have the least adverse impact without significantly increasing line
length. The outside consultant, Burns & McDonnell, was asked to evaluate potential
routes from a point near where the existing 138 kV circuit turns east, to a point along the
345 kV circuit where the new Weeds Lake station would be built.
Mr. Capra testified that the company first identified a concern with potential
overloads on the Argenta transformers in 2007, as part of the company’s annual system
assessment submitted to the Midwest Independent System Operator (MISO). He
further testified that the company’s plans to address this concern were submitted to
MISO for evaluation in 2009, as part of the company’s 2009 MISO Transmission
5 See 3 Tr 78-80.
U-17041 Page 5
Expansion Plan (“MTEP”), and that MISO’s analysis helped verify the need for the
project.6
Mr. Capra explained the evaluation process METC used prior to submitting its
plans to MISO, which included the review of at least 8 other options.7 He testified that
these alternatives were rejected for a variety of reasons, including failure to meet the
planning criteria, and overloading of the circuits.8
Mr. Capra testified that the company considered the option of adding a fourth
transformer to the Argenta station, but rejected that option because it would not also
protect against the risk that the station in its entirety could be disconnected from the
345kV source or the 138 kV transmission lines that serve the Kalamazoo and Battle
Creek area.9
Mr. Capra testified to the company’s rationale for choosing two double-circuit kV
pole lines in the proposed right-of-way.10 He testified that as an alternative, the
company considered and rejected locating the Weeds Lake substation along the 138 kV
right-of-way, using one double-circuit 345 kV pole line rather than the proposed two
double-circuit 138 kV pole lines, concluding that although this would reduce the length
of the right-of-way required, it would be more expensive, and would make it more
difficult in the future to connect additional 345 kV circuits into the new substation. He
further testified that connecting one rather than two 138 kV circuits to the existing two
138 kV circuits between Argenta and Milham would cause flows on the 138 kV circuit
6 See 3 Tr 80, 86-88. 7 These options are described at 3 Tr 81-83. 8 See 3 Tr 83-84. 9 See 3 Tr 84. 10 See 3 Tr 85-86.
U-17041 Page 6
around Kalamazoo to become unbalanced, especially if additional MISO-approved
plans to connect some of the Argenta circuit to northern Indiana are pursued.
Mr. Capra also summarized the benefits from the proposal, indicating that it will
meet NERC reliability standards, reduce outage risks in the Kalamazoo and Battle
Creek area, and reduce system losses during peak loading conditions, improving the
efficiency of the system.11 Wholesale users of the proposed transmission line include
Consumers Energy Company as well as all transmission customers taking service
under MISO’s open access transmission tariff, which provides non-discriminatory
access to METC’s transmission facilities.12
Mr. Capra presented Exhibits A-1 through A-4 in support of his testimony,
including the Weeds Lake Project Justification Document (Exhibit A-1) and the Weeds
Lake Section of the company’s 2009 MISO Transmission Expansion Plan (MTEP) filing
with FERC. Exhibit A-4 shows the proposed line in relation to the new line.
Mr. Capra also provided rebuttal testimony, discussed below.
Jason Sutton, Manager in the Project Engineering Group at ITC, also with a
background in engineering, testified to the physical configuration of the proposed lines,
the necessary right-of-way, and the construction schedule.13 He testified that the two
double-circuit 138 kV lines would run parallel, with the centerlines for each separated by
60 feet, and would require a total right-of-way width of 220 feet.14
Mr. Sutton also testified that the new substation would be located on 41 acres in
Almena Township, with one transformer stepping down 345 kV to 138 kV, an unmanned
11 See 3 Tr 88-89. 12 See 3 Tr 89. 13 His direct testimony is transcribed at 3 Tr 109-121. 14 See 3 Tr 113, 114-115.
U-17041 Page 7
electrical equipment and control center, circuit breakers designed to isolate system
faults, and space available for future 345 kV and 138 kV equipment. He estimated the
total cost of the project to be approximately $45 million, $23.3 million for the substation
and $20 million for the transmission lines, and further described the construction
process.
Additionally, Mr. Sutton’s direct testimony identified and discussed an Oshtemo
Township ordinance and environmental requirements that might apply to the project.15
His Exhibit A-5 is a drawing showing the proposed line; his Exhibits A-6 and A-7
provide information on the conductor, and the applicable vegetation management
schedule for the proposed lines. His calculation of the necessary right-of-way is
presented in Exhibit A-8, and the Oshtemo Township utility control ordinance is his
Exhibit A-9.
Mr. Sutton also presented rebuttal testimony, discussed below.
Stephen G. Thornhill, Associate Project Manager in the Environmental Studies
and Permitting Global Practice Division of the consulting firm Burns & McDonnell
Engineering Company, Inc., testified regarding the route selection study performed by
the consulting firm, and the resulting “Preferred Route” and “Alternate Route”
recommendations.16
Mr. Thornhill has a background in both routing and environmental studies for
transmission lines, shown in more detail in Exhibit A-10. As the project manager for this
project, he explained the work the consulting firm did and the route selection process
used, beginning with the development of a study area, the development of detailed
15 See 3 Tr 117-121. 16 Mr. Thornhill’s testimony is transcribed at 3 Tr 126-149.
U-17041 Page 8
information about the area, development of numerous potential routes and route
segments, and analysis of the impacts associated with each route and segment. He
testified to the draft report initially presented in June 2011, public open houses and
discussions presenting the recommendations, and subsequent revisions and updates to
the preferred route to result in the Final Route Study that he presented as his
Exhibit A-11.17 His Exhibit A-12 is a map showing the route resulting from the June
2011 draft report.
Focusing the bulk of his testimony on the route selection process, Mr. Thornhill
testified in more detail regarding the information compiled for the study, and the
development of route screening criteria. He testified that 19 screening criteria were
developed to compare 90 route segments and 321 potential routes, and statistical
techniques were employed to identify a smaller number of routes for further evaluation.
He explained that z-scores were computed for each route for each of the 19 criteria to
statistically measure the positive or negative deviation from the average value for that
criterion, and weights were developed for each criteria leading to a calculation of a
weighted z-score for each route. The criteria, weighting, raw and adjusted z-scores for
each route/segment are included in Exhibit A-11. The 50 least-impact routes based on
53 route segments were selected using this process for further evaluation, leading to
the identification of the preferred and alternate routes included in the company’s
application.18
17 See 3 Tr 131-134. 18 See 3 Tr 134-140.
U-17041 Page 9
Mr. Thornhill testified to the further analysis used to select the preferred and
alternate routes, and described those routes in greater detail.19 He testified to his
opinion that both these routes are reasonable and feasible routes that minimize the
overall social and environmental impacts associated with a project of this nature.
Mr. Thornhill also presented rebuttal testimony, discussed below.
Gary R. Kirsh, Manager of Community Relations in the Local Government and
Community Affairs Department of ITC, testified to address the company’s
communications with elected officials and community members regarding the route,
including meetings and open houses held with Oshtemo Township and Almena
Township between December of 2010 and June of 2012.20 He presented Exhibits A-13
through A-18 to support his testimony.
Mr. Kirsh also presented rebuttal testimony, discussed below.
Steven J. Koster, P.E., a consultant employed by Environmental Resources
Management, Inc., testified to applicable environmental regulatory requirements and
METC’s plans to comply with those requirements.21 Although the requirements cannot
be identified with specificity at this point, he testified that the proposed project would
comply with all applicable state and federal environmental standards, laws, and rules.
J. Michael Silva, P.E., a research engineer specializing in electric and magnetic
fields and president of ENERTECH Consultants, testified regarding anticipated EMF
levels associated with the project, and provided a comparison of those levels to other
EMF sources in everyday environments.22 He testified that computer modeling and field
19 See 3 Tr 140-149. 20 Mr. Kirsh’s direct testimony is transcribed at 3 Tr 158-165. 21 Mr. Koster’s testimony is transcribed at 3 Tr 171-182. 22 Mr. Silva’s testimony is transcribed at 3 Tr 183-202.
U-17041 Page 10
instrumentation developed by his company have been used throughout the world to
evaluate levels of EMF exposure. He testified to his evaluation of the EMF levels for the
proposed transmission line, and his conclusion that levels from the proposed
transmission line are similar or lower than those from other similar lines already
operating in Michigan and throughout the country, below levels recommended by
credible international expert organizations, and within the range that people experience
every day in normal living and work environments. He presented Exhibit A-19 to show
EMF levels he measured around Oshtemo and Kalamazoo.
Mark A. Israel, M.D., Professor and Director of the Norris Cotton Cancer Center
at Dartmouth Medical School, also testified regarding EMF exposure levels.23 He
testified that he conducted an independent evaluation of the published peer-reviewed
scientific research on EMF exposure and the development of cancer. He looked at
laboratory studies focused on cell and tissue effects from EMF, as well as large animal
studies, and concluded that the published, peer-reviewed laboratory research does not
provide a reliable scientific basis to conclude that exposure to power frequency EMF
causes or contributes to the development of cancer.
H. Dwight Mercer, PhD, DVM, testified as a veterinarian and comparative
toxicologist to his evaluation of the potential effects of EMF from the proposed
transmission lines on animals living along the route. 24 Based on his experience and
review of the scientific literature, he concluded that there is no reliable scientific basis to
conclude that the line will cause or contribute to adverse health effects in these animals.
23 Dr. Israel’s testimony is transcribed at 3 Tr 203-215. 24 Dr. Mercer’s testimony is transcribed at 3 Tr 216-229.
U-17041 Page 11
B. Staff
Steven E. Kulesia, Manager of the Generation and Certificate of Need Section of
the MPSC’s Electric Reliability Division, testified to Staff’s recommendation that the
Commission approve the proposed transmission project.25 Mr. Kulesia testified to
Staff’s involvement with the project, beginning with the MISO Transmission Expansion
Plan (MTEP) process. He confirmed the company’s characterization of the project as
not a “major” project under Act 30. He explained that in addition to reviewing the
testimony and discovery in this case, he conducted a field review of the proposed lines.
Citing Mr. Capra’s testimony, he concluded that the quantifiable and nonquantifiable
public benefits of the project justify the construction. He further testified that the
proposed route is feasible and reasonable, and not an unreasonable threat to the public
health and safety.
Lynn M. Beck, an analyst in the Generation and Certificate of Need Section of
the MPSC’s Electric Reliability Division, testified that the company complied with the
public notice and property owner notice requirements in Act 30, set forth in MCL 460.66,
460.567(2)(j), and 460.568(1).26 Ms. Beck’s Exhibit S-1 is the full transcript from the
public meetings METC conducted; she also presented Exhibits S-2 and S-3 to show the
circulation of the papers METC used to publish the notices of hearing and opportunity to
comment, and Exhibit S-10 containing additional discovery responses from the
company.
Naomi J. Simpson, an engineer in the Generation and Certificate of Need
Section of the MPSC’s Electric Reliability Division, testified that the company’s
25 Mr. Kulesia’s testimony is transcribed at 3 Tr 350-362. 26 Ms. Beck’s testimony is transcribed at 3 Tr 319-328.
U-17041 Page 12
application meets the filing requirements set forth in sections 4 and 7(2)(a) through (l) of
Act 30.27 Ms. Simpson described Staff’s review of the application and related
documents. To show compliance with section 7(2)(c), which requires the company to
demonstrate consideration of alternative routes, she presented Exhibit S-4 (a map
showing both the company’s preferred and alternate routes ) and Exhibit S-5 (discovery
responses from the company). She testified that Staff agrees with the company’s
decision to remove the southern routes within the I-94 corridor from consideration.
Other discovery responses from the company regarding the project are contained in her
Exhibits S-6 through S-9 and S-11.
Ms. Simpson relied on Ms. Beck’s testimony regarding the company’s
compliance with the requirement of section 7(2)(j) of Act 30. She further testified,
however, that the company’s summaries of the comments made at the public meetings
were oversimplified when compared to the transcripts. She recommended that the
company make greater efforts to address commenter concerns, although she testified
this is not required by Act 30.
C. Oshtemo Charter Township
Elizabeth Heiny-Cogswell, Oshtemo Charter Township Supervisor, testified on
behalf of the Township.28 She explained the Township’s position opposing the
proposed route, and provided foundational information regarding the Township’s Utility
Control Ordinance, including recent amendments. She presented as exhibits the
Oshtemo Township Master Plan (Exhibit OCT-1), the Oshtemo Township Future Land
27 Ms. Simpson’s testimony is transcribed at 3 Tr 329-349. 28 Ms. Heiny-Cogswell’s testimony is transcribed at 3 Tr 287-303, including amended testimony at 3 Tr 302-303.
U-17041 Page 13
Use Map Exhibit OCT-2), the Oshtemo Township Village Theme Development Plan and
Map (Exhibits OCT-3 and OCT-4), Oshtemo Township Zoning Ordinances and Zoning
Map (Exhibits OCT-5 and OCT-6) as well as the Township resolution adopting the Utility
Control Ordinance amendment (Exhibit OCT-7), the Utility Control Ordinance as
amended (Exhibit OCT-8), and other Township Ordinances (Exhibits OCT-9 and
OCT-10).
Ms. Heiny-Cogswell described communication between the Township and METC
beginning in December of 2010, and explained her opinion that METC had not been fair
and open in dealing with the citizens and the Township during the route selection
process. Among other concerns, she testified that METC had implied to Oshtemo
residents that the Township had approved the project, and she quoted a letter she had
written to Michigan Attorney General Bill Schuette complaining that METC was not
providing sufficient and accurate information regarding the project. She characterized
meetings as short and few, and testified that at the meetings, only general mapping
information was available, and no specific explanation of the routing criteria or analysis
of the criteria was provided.
Ms. Heiny-Cogswell testified that the Township believes that the preliminary
routes numbered 166 and 219 as identified in the June 2012 Burns & McDonnell
Report, which generally parallel the north side of I-94, are better than METC’s preferred
and alternate route, concluding that the routes along I-94 will have a lesser impact on
the community at large because they rely in part on an existing corridor and public
lands, lessening the burden on private homeowners.
U-17041 Page 14
She also testified extensively regarding the Township’s amendment of Ordinance
No. 114 through the adoption of Ordinance No. 525, explaining the purposes behind the
amendment, her understanding of its legal status and relationship to the company’s
1995 PA 30 application, and the interrelation of Ordinance No. 114 to the Township’s
Future Land Use Plan and other Township ordinances.
Gregory Milliken, Oshtemo Charter Township Planning Director, with a
background in urban planning, also testified for the Township.29 He provided what he
characterized as “foundational information” for the Township’s Ordinance No. 114, as
amended by Ordinance No. 525. He testified that the proposed Weeks Lake project is
not consistent with the vision of the Township as embodied in its Master Plan, which
focuses on preserving the rural character of the Township and protecting its natural
features. He testified that the proposed route would destroy the tree-lined corridor
along substantial stretches of many roadways, resulting in irreparable damage to the
rural character of the Township. He contrasted this with the Township Master Plan
which has as one of its main goals to preserve and encourage tree-lined roads. He also
described the “Village Area” that is part of the Township’s long-term planning, with
South 9th Street intended to be the gateway into the Village Area from the highway. He
testified to his opinion that because the proposed route crosses South 9th Street
between I-94 and the Village Area, it would interfere with the main corridor for accessing
the Township and implementation of the Village Theme Development Plan, asserting it
would look more like the entrance to an industrialized area than a quaint village. He
also testified that the Township recommends a route for the transmission line using the
29 Mr. Milliken’s testimony is transcribed at 3 Tr 304-316, including amended testimony at 3 Tr 314-316.
U-17041 Page 15
I-94 corridor, routes 166 and 219 in Exhibit A-11, which will have a lesser impact on the
community at large.
D. Landowners
James R. Dauphinais testified on behalf of the Landowners.30 He is a consultant
and Principal with Brubaker & Associates, Inc., with a background in electrical
engineering, and experience in transmission planning.
Mr. Dauphinais testified to his opinion that the quantifiable and nonquantifable
benefits of the proposal do not justify the offsetting quantifiable and nonquantifiable
detriments, including the estimated $45 million cost of construction, the adverse impact
of locating the project within 500 feet of 30 residences and across 40 to 50 parcels of
land in the Kalamazoo area, and the associated loss of woodland and cropland.
See 3 Tr 246.
He described METC’s existing system and METC’s proposal, presenting Exhibits
LO-1 and LO-2, one-line diagrams of the current system and the system as modified by
the company’s proposal, simplified for discussion purposes. He also reviewed NERC
reliability requirements and METC’s analysis. In support of his conclusion that the
benefits of the Weeds Lake project do not justify the costs, Mr. Dauphinais identified two
alternatives that he concluded achieve comparable benefits at less cost and are
therefore preferable to the Weeds Lake project.
First, he testified that the legitimate reliability need in the Kalamazoo area can
reasonably be met with the addition of a fourth transformer at Argenta.31 His Exhibit
LO-3 shows the fourth transformer overlaid on the one-line diagram in Exhibit LO-1. He 30 Mr. Dauphinais’s testimony is transcribed at 3Tr 234-284. 31 See 3 Tr 253-264.
U-17041 Page 16
testified that by adding this fourth transformer, no additional lines would be needed. He
rejected METC’s claim that adding a fourth transformer would be akin to putting all its
eggs in one basket.32 He characterized the loss of 345 kV connection to the Argenta
station, or the loss of all 138 kV connections from Argenta, as a NERC Category D
extreme contingency, beyond NERC requirements and METC’s stated planning criteria,
presenting Exhibits LO-6, LO-8, and LO-9, and addressed what he characterized as the
company’s “philosophical” objection to using four transformers at on substation,
indicating that he is aware of at least one instance where such a configuration has been
used.33
Second, he testified that the “B Avenue” alternative evaluated by the company in
its planning process and in Exhibit A-1 is preferable to the company’s Weeds Lake
proposals, because it achieves the reliability benefits at a significantly lower cost. His
Exhibit LO-4 shows the one-line diagram of this alternative.
In discussing these alternatives, Mr. Dauphinais addressed the company’s claim
that the power flows are better balanced under the Weeds Lake proposals in the event
of a contingency loss of the double circuit 345 kV lines serving the Argenta and Battle
Creek substations. He testified that the power flow advantages that METC identifies to
support its proposal (reducing induced power flows on the 138 kV lines in the event of a
double-circuit 345 kV transmission line outage) could only be achieved by also
rebuilding the 138 kV lines from Morrow to Battle Creek (which the company indicates it
intends to do). Given replacement of this line, he testified that the fourth transformer
and the B Avenue alternative would achieve similar benefits if the appropriate
32 See 3 Tr 257-259. 33 See 3 Tr 260-261.
U-17041 Page 17
protections (power flow control reactors) are installed along with the replacement. His
Exhibit LO-7 contains his power flow analysis of the company’s proposal in comparison
to the use of a fourth transformer at Argenta and to the B Avenue alternative. His
Exhibits LO-10 and LO-11 provide information on the use of power flow control reactors.
Mr. Dauphinais also addressed the transmission loss levels under each
alternative. He acknowledged that the addition of a fourth transformer alone, or the B
Avenue alternative, would increase transmission losses slightly, in comparison to the
company’s proposal which is estimated to reduce transmission losses by approximately
2.6 MW at system peak. He concluded based on his analysis that additional efficiency
gained from the company’s proposal, which he estimated at not more than 1 MW per
year, did not justify the additional $10 to $20 million cost.34
Mr. Dauphinais also discussed the MISO Board of Director’s review of the
company’s proposal, characterizing it as “skin deep” on the basis that the Board did not
review or discuss the evaluation of any alternatives.35 He provided this testimony to
support his contention that the MISO Board of Director’s approval of the project should
not be a substitute for thorough Commission review in this case.
Mr. Dauphinais also testified regarding the reasonableness of the preferred and
alternate routes recommended by the company for the Weeds Lake project, and the
Burns & McDonnell analysis. He testified that the general method used by Mr. Thornhill
was reasonable, and reached results that are “not wildly off base”, although he took
issue with some of the routing factors and some of the weightings.36
34 See 3 Tr 263-364. 35 See 3 Tr 265. 36 See 3 Tr 270-273.
U-17041 Page 18
Mr. Dauphinais testified that the company rejected the best-scoring routes in its
preliminary analysis, contending that the company unreasonably rejected them based
on a concern a portion of the best-scoring route paralleling I-94 could not accommodate
a 220-foot right of way. He testified that METC should have explored narrowing its
right-of-way requirement for the two constrained route segments 26 and 37 to determine
whether the apparent available right of way could be expanded for those segments or
the required right-of-way for the project narrowed for those segments. He also testified
that quad-circuit structures should also be considered for those route portions,
recognizing this would introduce additional NERC planning requirements.37
Additionally, he testified that METC could redesign its project to require only a
single double-circuit transmission line, as shown in his Exhibit LO-5, which would
require only 160 foot right-of-way. He refers to this alternative as the “Tapping Variant”.
He included a power flow analysis of the “Tapping Variant” in his Exhibit LO-7, and
presented a comparison of the routing factors in his Exhibit LO-12. He testified that the
“Tapping Variant” would be a mile shorter, and require significantly less right of way.
His power flow analysis in Exhibit LO-7 showed that it provides nearly identical relief to
the reliability issue and parallel 138 kV power flow issue as the company’s proposal, at
a cost of $10 million less.
Mr. Dauphinais testified further regarding METC’s conclusion that I-94 expansion
plans would interfere with using the I-94 corridor for the transmission line. He testified
that the Michigan Department of Transportation (MDOT) plans are only preliminary, and
may not involve expansion of the existing right of way or sound barriers. He presented
Exhibits LO-13 and LO-14 to support his testimony. 37 See 3 Tr 273-275.
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E. Rebuttal to Landowners testimony
Three witnesses testified in rebuttal to Mr. Dauphinais’s testimony, disagreeing
with his conclusion that the quantifiable and nonquantifiable benefits of the company’s
proposal do not justify its approval.
Mr. Capra testified regarding the company’s consideration of alternatives to its
proposal, including the addition of a fourth transformer.38 He testified that the company
did perform a power flow analysis of the option of adding a fourth transformer at
Argenta, but did not rely exclusively on a power flow analysis in concluding that the
Weeds Lake project provides the most relief of the already heavily loaded 138 kV
circuits serving Battle Creek and Kalamazoo from Argenta.
He testified adding a fourth transformer at Argenta or adding a new station less
than 2 miles south of Argenta would continue to require the Kalamazoo area to be fed
primarily from the north and would not help to mitigate the risk of blackouts and/or
brownouts for certain NERC category D contingencies.
Likewise, he testified, the company did not rely only on the factors identified by
Mr. Dauphinais in rejecting the B Avenue alternative, but on a multi-year and multi-facet
study approach that considered many aspects including impacts to the 138 kV system
in the Kalamazoo and Battle Creek areas.
He testified that the benefits of the Weeds Lake proposal in reducing flows on the
Argenta to Morrow and Argenta to Riverview 138 kV circuits for certain contingencies
were not dependent on rebuilding sections of the Morrow to Battle Creek 138 kV circuit.
While he agreed this benefit could be obtained by the addition of reactors, he further
38 Mr. Capra’s rebuttal testimony is transcribed at 3 Tr 91-108.
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testified that the addition of reactors would not add a second, geographically distant
source for the Kalamazoo area, reduce the risks of blackouts or brownouts associated
with the loss of the 345 kV lines serving Argenta, or reduce transmission losses.39
Mr. Capra disputed that METC unnecessarily plans for Category D
contingencies, indicating that METC reasonably plans for load growth and that a broad
range of contingencies could shift into different categories for planning purposes as load
grows and/or dispatch patterns change, and testified that it is reasonable to plan for
contingencies even if they have not occurred within a 10-year period. He presented
Exhibits A-20 and A-21 to show that certain category D contingencies identified by
METC could lead to brownouts and/or blackouts in the Kalamazoo area, which would
lead to a substantial loss of customer demand.
Mr. Capra also addressed system efficiencies, presented Exhibit A-22 to show
that the company’s proposal results in reductions in system losses at both peak and off-
peak system loads, while the alternatives identified by Mr. Dauphinais increase system
losses at peak and off-peak loads.
Mr. Capra disputed Mr. Dauphinais’s characterization of the MISO Board review
as “skin deep”, presenting his response to the Landowner’s discovery in Exhibit A-23,
and citing his earlier Exhibits A-1 and A-2.
Finally, Mr. Capra discussed the “Tapping Variant” identified by Mr. Dauphinais,
asserting it is not a valid solution to the reliability need and would create a three-circuit
system, which METC tries to avoid because they are less reliable and difficult to
properly protect.
39 See 3 Tr 97.
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Mr. Sutton’s rebuttal testimony addressed the required right of way, disputing Mr.
Dauphinais’s testimony that the width of the required right of way could be reduced over
any portion of the route, or that quad-circuit structures could reliably be used on certain
route segments, to allow METC to use the I-94 corridor for the project.40
Mr. Thornhill’s rebuttal testimony addressed Mr. Dauphinais’s conclusion that
routes following I-94 should have been given more consideration.41 He testified that
even with reduced right of way, routes 166 and 219 would be closer to more residences
and have greater visibility than the company’s preferred and alternate routes. He also
disputed Mr. Dauphinais’s testimony that some of the route selection criteria and
weightings were unusual.
F. Rebuttal to Township testimony
Two witnesses testified in rebuttal to the testimony presented by the Township.
Mr. Thornhill’s rebuttal testimony also addressed Mr. Milliken’s and Ms. Heiny-
Cogswell’s testimony that the Township’s recommended route would have a lesser
impact on the community at large. He testified that the Township’s preferred route would
have 10 to 12 more homes within 500 feet of the corridor, 43 homes rather than 31 and
33 homes for METC’s preferred and alternate routes. Further, he testified that METC’s
proposed and alternate routes minimize overall impacts to human and natural resources
better than the other routes evaluated, relying on his Exhibit A-11. And he testified that
the proposed and alternate routes were no more incompatible with the Township’s
master plan than the alternatives preferred by the Township.
40 Mr. Sutton’s rebuttal testimony is transcribed at 3 Tr 122-125. 41 Mr. Thornhill’s rebuttal testimony is transcribed at 3 Tr 150-157.
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Mr. Kirsh testified in rebuttal to Ms. Heiny-Cogswell’s testimony regarding
METC’s dealings with the township during the route selection process, contending that
METC had numerous meetings and communications with the Township, identifying
several of those meetings and communications in his testimony.42
III.
STATUTORY FRAMEWORK
Before turning to an overview of the arguments the parties make in their briefs, it
is appropriate to review the statutory framework. Because METC’s project does not
meet the statutory definition of a “major transmission line” under section 2(g) of Act 30,
METC is not required to obtain a certificate of public convenience and necessity for the
proposed transmission line. Instead, section 9 of Act 30 gives METC the option to apply
for a certificate of public convenience and necessity. Under section 9, the Commission
is directed to proceed on the application in the same manner as provided in section 8
for major transmission lines. Section 4, which requires the initial filing of a construction
plan prior to an application for a certificate, does not apply to METC’s application under
section 9, but section 9 further provides that “the provisions of this act that apply to
applications and certificates for major transmission lines apply in the same manner to
applications and certificates issued under this section.” 43
Section 6 of the Act contains provisions for public meetings and meetings with
local officials in advance of an application. Section 7 states the requirements for an
42 Mr. Kirsch’s rebuttal testimony is transcribed at 3 Tr 166-170 43 MCL 460.569.
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application. And section 8 directs the Commission’s proceedings on an application, with
requirements for notice and a contested case hearing.
Subsection 4 of section 8 provides as follows:
The Commission shall grant or deny the application for a certificate not later than 1 year after the application’s filing date. If a party submits an alternative route for the proposed major transmission line, the commission shall grant the application for either the electric utility’s, affiliated transmission company’s, or independent transmission company’s proposed route or 1 alternative route or shall deny the application. The commission may condition its approval upon the applicant taking additional action to assure the public convenience, health, and safety and reliability of the proposed major transmission line.44
Subsection 5 of section 8 further governs the Commission’s decision making:
The commission shall grant the application and issue a certificate if it determines all of the following: (a) The quantifiable and nonquantifiable public benefits of the
proposed major transmission line justify its construction. (b) The proposed or alternative route is feasible and reasonable. (c) The proposed major transmission line does not present an
unreasonable threat to public health or safety. (d) The applicant has accepted the conditions contained in a
conditional grant.45
Additionally, subsection 6 of section 8 requires that a certificate “identify the major
transmission line’s route and . . . contain an estimated cost for the transmission line.”
Section 10 of the act expressly addresses local ordinances:
(1) If the commission grants a certificate under this act, that certificate shall take precedence over a conflicting local ordinance, law, rule, regulation, policy, or practice that prohibits or regulates the location or construction of a transmission line for which the commission has issued a certificate.
(2) A zoning ordinance or limitation imposed after an electric utility, affiliated transmission company, or independent transmission
44 MCL 460.568(4). 45 MCL 460.568(5).
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company files for a certificate shall not limit or impair the transmission line’s construction, operation, or maintenance.
(3) In an eminent domain or other related proceeding arising out of or related to a transmission line for which a certificate is issued, a certificate issued under this act is conclusive and binding as to the public convenience and necessity for that transmission line and its compatibility with the public health and safety or any zoning or land use requirements in effect when the application was filed.46
Section 15 of Act 30 expressly provides that judicial review of a Commission
decision is pursuant to MCL 462.26.
IV.
POSTITIONS OF THE PARTIES METC, Oshtemo Township, the Landowners, and Staff filed initial briefs, and
each of the parties except the Township filed reply briefs. The arguments of the parties
are largely tailored to the statutory criteria and other provisions described above, in
addition to arguments regarding the constitutionality of some of the provisions.
METC argues in its initial brief that the company has satisfied all of the
procedural requirements of Act 30 set forth in sections 6 and 7, and demonstrated on
the record that its proposed and alternate transmission line routes meet the
requirements of section 8(5) of Act 30. It argues on this basis that the Commission
must approve its application, and should select the proposed route over the alternate
route. METC further argues that in granting a certificate under the Act, the Commission
will preempt the Oshtemo Township ordinance requiring underground placement of the
lines within the public right of way.
46 MCL 460.570.
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Staff’s brief also recommends approval of METC’s application, reviewing the
provisions of Act 30 and the record evidence in support of its recommendation.
Oshtemo Township’s initial brief argues that the Commission should deny the
requested certificate of public convenience and necessity, or in the alternative, require
adherence to the Township’s ordinances. The Township criticizes METC’s efforts to
provide information to the Township during its route selection process, contending that a
lack of adequate notice of the public hearings and a lack of an opportunity for the public
to be heard violated due process and the requirements of MCL 460.566. The Township
also argues that its ordinances are valid and should be upheld. The Township does not
otherwise address the specific route selection in its brief.
The Landowners’ initial brief argues that METC has not established that its
proposed or alternate route meets the requirements for a certificate of public
convenience and necessity, arguing that the quantifiable and nonquantifable public
benefits of the line do not justify its construction because alternatives exist that are less
expensive and less destructive, and that the proposed and alternate routes are not
reasonable because less intrusive alternative routes exist. Additionally, the Landowners
also argue that Act 30 is unconstitutional as written and as METC asks that it be applied
in this case, as a taking of private property without due process, and a violation of the
separation of powers doctrine. The Landowners similarly argue that ignoring the
Township’s zoning ordinances in reliance on section 10 of Act 30 also violates
constitutionally required separation of powers and due process.
The Landowners characterize this as “the” proceeding that will decide the fate
and property rights of the landowners whose property is impacted by the lines, and thus
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argue this proceeding must meet certain constitutional standards, asserting that
subsequent proceedings in circuit court exist merely to determine the reasonable value
of the land METC is taking.
In its reply brief, the Landowners amplify their argument that the company failed
to comply with the public meetings requirement of the act, and failed to justify the
expense of the project. The Landowners further argue that the Commission should not
consider MISO approval of the project in determining whether to issue a certificate, and
addresses Staff’s brief, asserting that Staff’s recommendation relies on METC’s
assertions rather than an analysis of the alternatives identified by Mr. Dauphinais.
In its reply brief, Staff addresses the Township’s challenge to METC’s
compliance with the public meeting requirement of the Act, emphasizing Mr. Kirsch’s
testimony regarding METC’s meetings with Township leaders and the public meeting
held in Oshtemo Township, and Ms. Beck’s conclusion that these meetings satisfied the
statutory requirements. Staff also addresses the Township’s ordinances, arguing that
any township regulation of the proposed line would directly conflict with the authority
granted to the Commission under Act 30.
In its reply brief, METC argues that the Landowners and the Township have not
shown that METC failed to satisfy a statutory requirement entitling METC to a certificate
of public convenience and necessity for the project. METC argues that the alternatives
identified by the Landowners “are not based on a prudent and holistic transmission
planning process, are unreasonable, and do not provide the same public benefits as the
proposed transmission line.”47 METC also argues that a certificate issued by the
47 See METC reply brief, page 9.
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Commission will take precedence over the Township’s ordinances, and disputes that
Act 30 as written or applied in this case raises any constitutional concern.
Based on the briefs of the parties,48 the following issues require resolution:
1. Whether METC complied with the meeting requirements of section 6 of Act 30
prior to filing its application.
2. Whether METC has demonstrated that the quantifiable and nonquantifiable
benefits of the project justify its construction, including consideration of whether a
benefit/cost analysis is required, and the extent to which other less expensive or
less intrusive alternatives should be considered in evaluating METC’s proposal.
3. Whether METC’s proposed route is feasible and reasonable, including the
extent to which METC should have considered less intrusive alternative routes.
4. Whether and the Commission should consider and separately address the
Township ordinances pertaining to utility infrastructure.
5. The extent to which certain constitutional arguments raised by the Township
and the Landowners can be resolved in this proceeding.
48 The level of rancor in the arguments of all parties is unusual in Commission proceedings and not helpful to a determination of the merits of the arguments. One party states: “Although the Landowners attempt to make some arguments regarding the Proposed Transmission Line’s route and benefits, those arguments never actually address Act 30’s standards for granting a Certificate, ignore the substantial record evidence . . . and ultimately amount to nothing more than the typical ‘not-in-my-backyard’ self-interested arguments commonly associated with construction projects.” One party states: “Counsel . . . has never seen such a travesty in his entire life.” Another party claims: “[N]othing in the testimony or briefs of [the opposing parties] has credibility . . .” And a fourth party characterizes MISO as “an industry dominated artifice put in place to simply echo industry interests.”
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V.
PUBLIC MEETING REQUIREMENTS The parties dispute whether METC complied with the meeting requirements of
sections 6 of Act 30, MCL 460.566. This section requires that an applicant hold a public
meeting in each municipality through which the proposed line will pass,49 and prior to
that meeting, offer to meet with the chief elected official of each affected municipality.
METC contends that it satisfied these meeting requirements, citing Mr. Kirsch’s
testimony and Staff witness Ms. Beck’s testimony.50 Staff concurs that the statutory
requirements have been met.51
Oshtemo Township and the Landowners argue that METC failed to comply with
the meeting requirement. In its brief, the Township expresses dissatisfaction with the
quality of notice and information provided by METC. The Township further argues that
defects in the notice and information provided violate the requirements of due process
by depriving the residents of a meaningful opportunity to be heard.52 The Landowners
argue in their reply brief that the meetings were legally inadequate.53
Mr. Kirsch testified specifically with regard to Oshtemo Township, that the
company first communicated with the Township regarding a proposed transmission line
in December of 2010, and held meetings beginning in 2011. In advance of its July 31,
2012 application in this case, Mr. Kirsch testified that the company held a public
49 The statutory reference is to a major transmission line for which a plan has been submitted under section 4. As discussed above, section 4 is not applicable to this pipeline, but under section 9 of the act, an applicant must follow the same procedures except for the section 4 plan submission. No party has contended the meeting requirements of section 6 are inapplicable to METC's application in this case. 50 See METC brief, page 15; reply brief, pages 4-8. 51 See Staff brief, page 29; reply brief, pages 4-7. 52 See Oshtemo Township brief, pages 1-6. 53 See Landowners reply brief, pages 8-9.
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meeting in Oshtemo on June 27, 2012. He presented the public notice of that meeting
as his Exhibit A-17, and a summary of the comments received as his Exhibit A-18.54 He
further testified that the company invited Ms. Heiny-Cogswell, the Township Supervisor,
or her designee, to meet prior to that public meeting, presenting the June 5, 2012 letter
as his Exhibit A-13.55 In response to this letter, Mr. Kirsch testified that he accepted an
invitation to attend an Oshtemo Township Board meeting on June 12, 2012. The
minutes of that meeting are contained in Exhibit A-14.
Ms. Beck testified to her review of Mr. Kirsch’s testimony and exhibits, and her
Exhibit S-1 included transcripts of the public meetings held in Almena and Oshtemo
Townships, on June 26 and June 27, 2012 respectively.56
The record reflects the Township Supervisor's dissatisfaction with the company's
communications. Ms. Heiny-Cogswell testified that METC’s communications with the
Township were “not fair and open.”57 She acknowledged that communications between
METC and the Township dated back to December 2010, and her chronology of
meetings tracks with Mr. Kirsch’s testimony. But she further testified that the company
provided insufficient or misleading information, characterizing the information provided
as “general verbal and sketch plan information, without specific data or analysis.” The
Township’s dissatisfaction with METC’s communications appears to stem from 2011,
and is described in a letter Ms. Heiny-Cogswell wrote to Attorney General Bill Schuette
on January 4, 2012, quoted in her testimony at 3 Tr 291-292. Her letter states in part:
54 A summary of comments received is required to be included in the application per section 7((2)(j) of Act 30. 55 See Kirsch, 3 Tr 161-163; 168-170. 56 See Beck, 3 Tr 324-325. 57 See 3 Tr 289-292.
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The unfair practices to which I refer include ITC providing misinformation to individual citizens and to Township government. The unfair practices include lack of timely notice to all property owners, lack of sufficient overall project information, lack of accurate information, and lack of information about the proposed project timeline to property owners and residents.58
This letter references the June 2, 2011 meeting, and asserts that at the meeting,
METC told residents the right of way for the project would be 150 feet, rather than the
current proposed right of way of 220 feet. The letter also takes issue with the postcard
mailed to inform residences of the June 2, 2011 meeting. Ms. Heiny-Cogswell stated in
her letter that the postcard did not clearly convey that the company was proposing a
new transmission line through residents’ property, and was not sent to all property
owners along the proposed route.59
Mr. Kirsh did not address this letter or the specific allegations regarding the June
2011 meeting in either his direct or rebuttal testimony. Instead, his rebuttal testimony
reiterates that meetings took place, and cites the documentary evidence presented in
his direct testimony and Staff exhibits. In its reply brief, METC disputes that the 2011
postcard was deficient, providing a quotation from the postcard but not a record
citation.60 METC and Staff also argue that the 2011 communications are not relevant to
a determination whether the company complied with the requirements of section 6 in
preparation for its July 2012 filing.
The Landowners argue in their reply brief that the June 27, 2012 meeting was
inadequate because there was no real discussion at the meeting. The Landowners
argue that a “meeting” is defined as “a gathering of people for discussion” and a
58 See 3 Tr 291. 59 See 3 Tr 291-292. 60 See METC reply brief at page 6.
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“discussion” is defined as a “talk between people”. It cites the transcript of the June 27,
2012 public meeting in Exhibits S-1 and LO-15 with the following characterization:
The transcripts clearly show METC allowed interested parties to give “public comment” to voice their opinions of the project (which was not available in its final form at that time) and ask questions. What is glaringly absent from the transcripts is any real response from METC or meaningful answers to the questions posed. METC did not provide any direct response to the inquiries of the speakers. When the interested parties finished asking substantive questions, METC’s only response was “thank you.” Nor only is this rude and inconsiderate, but it is a one-sided monologue and not a gathering with the purpose of having people discuss an issue.61
Ms. Simpson testified on behalf of Staff as follows:
Although Act 30 does not require METC to respond to public comments, Staff’s position is that METC should make every attempt to address commenter concerns in the interest of open and transparent communication. As noted in the public meeting summary and transcript, METC did not attempt to provide a response to several comments. Staff notes that METC did address many of these topics within their application, however the affected landowners would have benefitted from complete responses to the questions posed during the public meeting process.62
This PFD concludes that METC satisfied the meeting requirements of section 6
of Act 30. The Township’s concerns with the company’s communications are directed
primarily at communications in 2011, rather than at the meetings the company held to
comply with the requirements of Act 30 in June of 2012.63 No party disputes that events
titled “public meetings” occurred on June 26 and 27, 2012, in Almena and Oshtemo
Townships, or that those meetings were properly noticed. No party disputes that
61 See Landowners reply brief, page 8. 62 See 3 Tr 347-348. Staff’s briefs assert that the meeting requirements were met, and do not mention Ms. Simpson’s concerns. 63 The Township brief’s objection to inadequate notice appears to refer to the postcard regarding the June 2011 meeting, since it places the timing prior to Ms. Heiny-Cogswell’s January 4, 2012 letter to the Attorney General. See Township brief, page 1 (“ITC’s information was so inadequate and so misleading that the Township Supervisor filed a complaint with the Michigan State Attorney General’ Office.”)
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Township officials were invited to meet with METC representatives prior to the public
meetings.64 As METC argues: “[T]he 2011 notice was beyond any statutory
requirement—it was part of METC’s community involvement and information gathering
efforts unrelated to the Act 30 filing.”65
Regarding the Landowners’ argument that the public meeting in Oshtemo
Township contained little discussion and therefore should not be considered to meet the
statutory requirement, it does appear from the transcript that the public meeting bore
more resemblance to a quasi-legislative or public hearing, in which members of the
public are given an opportunity to make comments for the record, with no discussion or
dialogue.66 There was no initial presentation by the company at the June 27, 2012
meeting; instead, the 7:30 p.m. meeting commenced with what the company called the
“public comment period”. Following numerous comments by members of the public,
the company spent approximately 8 minutes addressing some of the issues raised by
the commenters, in what it called the “panel response period”, with Mr. Thornhill, Mr.
Capra, and Mr. Sutton speaking.67 Nonetheless, in that brief panel response period,
METC did address some of the comments received. Moreover, immediately prior to the
“public meeting”, Mr. Kirsh testified that the company held an “open house” to provide
64 The Township's brief does allege that METC refused to meet with Township officials in public, but this appears to refer to earlier time periods, because the minutes of the June 12 2012 Oshtemo Township Board Meeting, Exhibit A-14, show that Mr. Kirsch attended that open meeting. 65 See METC reply brief, page 7. 66 The Township brief, however, appears to equate the terms “public meeting” and “public hearing” in its brief, pages 2, 4 and 6. 67 The June 27, 2012 transcript reflects that the public comment period was concluded at approximately 8:30 p.m., after a break (Exhibit S-1, page 45 of 63), and that the panel presentation was concluded by 8:38 (Exhibit S-1, page 52 of 63).
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information to members of the public, beginning at 5:30 p.m. on June 27, 2012, and
forty-nine people attended this portion of the event.68
In Case No. U-14861, the Commission addressed the public meeting
requirement as follows:
[T]he Commission finds nothing in Act 30 to suggest that the Legislature did not intend the mandatory meetings required by MCL 460.566 as a prerequisite for the filing of a certificate application to “encourage” an applicant to try to work out differences with municipalities and affected landowners. The meetings required . . . are to be informational in nature and were intended to promote an understanding on the part of governmental officials, affected landowners, and the general public of the applicant’s “desire to build the major transmission line and to explore the routes to be considered.” MCL 460.566(2).69
While the Commission recognized that the “public meeting” requirement is not intended
as a meaningless exercise, Act 30 contains no standards for the required meetings
except for the requirement in section 7(j) that an application contain a review of
comments received at such a meeting, and the company’s response to such
comments.70 METC did solicit comments at the public meeting, as noted above. It is
also reasonable and appropriate to consider the open house as part of the public
meeting, although METC identifies the open house and public meeting as distinct
events, and although the notice published in the Kalamazoo paper referred only to the
7:30 p.m. public meeting.
To the extent that the Township and Landowners contend that the alleged
deficiencies in the earlier meetings or June 2012 meetings deprived residents of due
process rights, this PFD does not find such a violation. There is no doubt that the
68 See 3 Tr 165, 170; see also Exhibit A-17. 69 See May 31, 2007 order, page 22. 70 It is not clear whether section 7(j) calls for the company to indicate the response it made to each comment at the meeting, or to actually provide a substantive response to the comment as information for the Commission to review. No party has addressed this question.
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essence of due process is a meaningful opportunity to be heard, as the Township’s brief
makes clear. But that meaningful opportunity to be heard is provided to all interested
parties through this contested case proceeding. As METC argues, the opportunity for a
contested case hearing before the Commission on METC's application presumptively
satisfies due process requirements.71 No party contended that notice of this contested
case proceeding was inadequate, and Staff independently verified that all affected
property owners were notified and that publication requirements were met.72
Thus, while meetings are statutorily required under section 6 of Act 30, they
appear to serve to help eliminate issues presented to the Commission for resolution,
rather than to meet the due process requirements of notice and a meaningful
opportunity to be heard. There is no statutory requirement that an applicant meet with
the public before its plans have solidified. Act 30 itself contemplates that public
meetings for major transmission projects will take place only after an applicant has filed
a plan under section 4. Should any applicant, however, conduct its meetings so as to
appear closed-minded or indifferent, alienate the community members, or fail to provide
meaningful information and explanations to justify the applicant's plans, the applicant is
much more likely to confront contentious litigation in its contested case hearing before
the Commission.
VI.
JUSTIFICATION METC contends that it has established pursuant to section 8(5)(a) of Act 30 that
the quantifiable and nonquantifiable benefits of the project justify its construction. Staff 71 See METC reply brief, page 31. 72 See Beck, 3 Tr 327.
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concurs. The Landowners argue that METC has not made this showing, asserting that
the company has failed to show that the benefits of the project justify the expenditure of
$45 million and the additional detriments associated with the construction.
Section A reviews the record evidence regarding the benefits of the Weeds Lake
project, while Section B reviews the benefits associated with certain alternatives to the
Weeds Lake Project identified by the Landowners. Recommendations are presented in
subsection C.
A. Weeds Lake Project
There is no dispute among the parties that the construction costs associated with
the Weeds Lake project as proposed by METC is $45 million.73 The seven-mile
transmission line will require a 220-foot right of way, and following the route proposed
by METC, will require 6 to 6.5 miles of new transmission corridor and a total 162-170
acres of new line right of way, and will pass within 500 feet of 31 to 33 residences.74 It
will cross 40 to 50 parcels of land, and result in the loss of 90 to 100 acres of woodland
and approximately 1.25 miles of cropland.75 METC identifies the following benefits from
the project, discussed in turn below: meeting the NERC Category B reliability
requirement for the maintenance outage of one of the three transformers currently at
Argenta, followed by the forced outage of a second transformer; reduction in loadings
on the Argenta to Morrow and Argenta to Riverview 138 kV circuits for certain
contingencies; decreased system losses translating to increased transmission
73 See Sutton, 3 Tr 116; Exhibit S-6. 74 See Thornhill, 3 Tr 144, 155. 75 See Dauphinais, 3 Tr 246; Exhibit A-11, page 116.
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efficiency; and adding a geographically distant source of power to supply the
Kalamazoo Battle Creek area.76
1. Initial Reliability Issue METC’s explanation of the need for the Weeds Lake project begins with an
explanation that the transmission line is needed to ensure that power will be supplied to
the Kalamazoo area during situations where one of the three 345/138 kV transformers
at the Argenta Station is taken out of service, and another transformer fails, to comply
with NERC planning criteria. Mr. Capra testified as follows, also explaining the current
system:
Q. Please address why this transmission line is needed and why METC is proposing this transmission line. A. The proposed transmission line will ensure that power will still be supplied to the Kalamazoo area during situations where one of the three 345/138 kV transformers at the Argenta station is taken out of service allowing METC to be compliant with the mandatory NERC planning criteria as discussed below. In this situation the system needs to be operated so that no equipment would be overloaded for the loss of a second 245/138 kV transformer. As shown on diagrams . . . found in Exhibit A-2 (CC-2), power generally flows on the 345 kV system from the large power plants on the west side of the state to load centers in the central area of the state, such as Kalamazoo and Battle Creek. Power also typically flows south into the 138 kV system from the 345 kV system at the Argenta station and then from west to east parallel to the 345 kV system. Planning assessments have indicated that following the loss of two of the three 345/138 kV transformers in the Argenta station, the third transformer will become overloaded. According to NERC criteria TPL-002a, transmission systems must be planned considering “the planned (including maintenance) outage of any bulk electrical equipment (including protection systems or their components) at those demand levels for which planned (including maintenance) outages are performed”. METC’s planning criteria, which are based on NERC’s requirements, provide additional detail and define that, at load levels up to 85% of the projected system peak load level, all
76 See, e.g., Capra, 3 Tr 107-108.
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facilities must be able to be operated within their emergency ratings during the shutdown of one transformer plus the contingent loss of a second.77
He further explained that the potential overloads on the Argenta transformers he
describes in this testimony were first identified by METC in its 2007 planning
assessments.78
No party disputes that the proposed Weeds Lake project would resolve the
potential overloading of the third transformer at Argenta, in the event that one
transformer is taken out for maintenance and a second transformer fails. Thus, no party
disputes that meeting the NERC criteria regarding the Argenta transformers is a benefit
of the Weeds Lake project.
2. Reduction in Loadings (short term) METC also identified a short-term reduction in the contingency loadings on two
heavily loaded circuits, the Argenta to Morrow and Argenta to Riverview 138 kV circuits,
as a benefit of the Weeds Lake project.79 Mr. Dauphinais explained the circuit loadings
issue as background to his discussion of the project and alternatives as follows:
Exhibit LO-1 (JRD-1) also shows the double-circuit 345 kV transmission line, located north of Kalamazoo, which runs east from Argenta substation to Battle Creek and Tompkins substations. The relevance of this double-circuit 345 kV line is that it electrically parallels the 138 kV facilities between Argenta, Morrow and Battle Creek substations. As a result, if a NERC Category C.5 contingency loss of this double-circuit 345 kV line occurs, the power that would have flowed over it is distributed across all other parallel transmission paths including, but not limited to, other 345 kV lines located further north in the Lower Peninsula of Michigan and the 138 kV transmission facilities between Argenta, Morrow and Battle Creek substations.
77 See 3 Tr 78-79 (footnotes omitted); see also Exhibits LO-24 and A-35. 78 See 3 Tr 80. 79 See Exhibit A-1, and Capra, 3 Tr 97.
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This is because, in alternating current transmission systems, power flows between two points on all available transmission paths between those two points in inverse proportion to the impendence of each of those paths except when such a path is under phase shifting transformer control such as on the transmission ties between Ontario and the Lower Peninsula of Michigan.80
METC’s analysis in Exhibit A-1 indicates that the Weeds Lake proposal will
reduce loadings on the 138 kV lines from Argenta to Morrow and Argenta to Riverview
by 6.6% and 7.6% respectively, but increase the loadings on the Morrow to Battle Creek
138 kV lines by 8.6%.81 Exhibit A-1 states in part:
Weeds Lake has the advantage of helping reduce the loading on the Argenta-Morrow and Argenta-Riverview 138kV lines . . . . On the other hand, it also increases the loading on the Morrow-Battle Creek 138kV line. This line has been an existing concern on the METC system regarding outages and frequent maintenance problems. There is already an infrastructure determination of rebuilding a 15-mile section of this line to fix this issue, which takes care of the . . . overload on the Morrow-Battle Creek 138kV for the aftermath of Weeds Lake project. This alternative also mitigates the loading on the heavily loaded 138kV lines (Argenta-Morrow & Argenta-Riverview) in the area for the short-term while waiting for a more robust, permanent solution to address the east-to-west flow and 345kV double-circuit-tower outage issues.82
In discussing this analysis, Mr. Dauphinais characterizes the company’s decision to
proceed with the Weeds Lake project as based on the following:
(i) METC was already examining the rebuild of a 15-mile section of the Morrow to Battle Creek 138 kV transmission line in order to raise the capacity of that line and (ii) METC’s Proposed Transmission Line project provided some help with regard to reducing the post-contingency loading of these two 138 kV lines out of Argenta while waiting for a most robust, permanent solution to address west-to-east flows on these 138 kV circuits during an outage of the double-circuit 345 kV transmission line.83
80 See 3 Tr 247-248. 81 See Dauphinais, 3 Tr 251-252. The exact figures are reported in Exhibit A-1, page 8, but are not stated in this PFD because Exhibit A-1 is a confidential exhibit. 82 See Exhibit A-1, page 8, percentage omitted. 83 See 3 Tr 252.
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Mr. Dauphinais testified that the short-term benefits the company would obtain from the
load reductions are dependant on the additional rebuilding of the Morrow to Battle
Creek line to address the adverse impact of the Weeds Lake project. He then testified
that METC does not currently have firm plans to rebuild that line: “Our review of ITC’s
website and MISO Transmission Expansion Plan tables did not reveal any announced
firm plans to pursue this transmission line rebuild project.”84
In rebuttal, Mr. Capra testified that the Morrow-Battle Creek rebuild was not
relevant:
The short term benefit noted in Exhibit A-1 (CC-1) was referring to the fact that the Weeds Lake project will help to reduce flows on the Argenta to Morrow and Argenta to Riverview 138 kV circuits for certain contingencies, not the Morrow to Battle Creek 138 kV circuit. Rebuilding sections of the Morrow to Battle Creek 138 kV circuit will have minimal impacts on the Argenta to Morrow and Argenta to Riverview 138 kV loadings, thus the short term benefits—reduced loading on the Argenta to Morrow and Argenta to Riverview 139 kV circuits—will be realized even if sections of the Morrow to Battle Creek 138 kV circuit are not rebuilt.85
The record supports METC’s contention that the Weeds Lake project will achieve
a short-term reduction in the loadings on the Argenta to Morrow and Argenta to
Riverview 138 kV circuits, although as discussed below, it also supports Mr.
Dauphinais’s conclusion that additional work will be required on the Morrow to Battle
Creek circuits to address the impacts of the Weeds Lake project.
3. Reduction in system losses METC also identified the reduction in system losses associated with the Weeds
Lake project, or increased efficiency, as a nonquantifiable benefit of the project. More
efficient systems require less power production, all else equal. Mr. Capra testified that 84 See 3 Tr 253, n6. 85 See 3 Tr 97.
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the transmission line would reduce system losses during peak loading conditions by
about 2.6 MW, with projected peak and off peak savings of 2 to 3.5 MW for 2017 and
2020.86 Mr. Dauphinais attempted to quantify the benefit, estimating an annual savings
of $1.3 million.87
4. Geographically distant source of power METC also identified as a nonquantifiable benefit of the project that it would add
a geographically distant source of power into the Kalamazoo area. METC contrasts this
benefit to the alternatives such as a fourth transformer at Argenta, which it characterizes
as putting all its eggs in one basket, as discussed below. A geographically distant
source of power could enhance system reliability in event of certain contingencies, such
as the loss of the ties from the 345 kV lines to the Argenta substation.88
B. Alternatives
It is also appropriate to review alternatives identified by the Landowners as less
costly and less destructive than the Weeds Lake Project. Mr. Dauphinais testified:
METC has not reasonably shown that the quantifiable and non-quantifiable benefits of its Proposed Transmission Line Project justify the construction of it. The legitimate reliability concern it has with the contingency loss of two Argenta 345/138 kV transformers can be reasonably addressed by the addition of a fourth 345/138 kV transformer at Argenta without any new transmission lines at one-third of the cost, or about $20 million less, than METC’s Proposed Transmission Line Project. Alternatively, the “B Ave” Alternative could be utilized at approximately two-thirds the cost, or about $10 million less, than METC’s Proposed Transmission Line Project with a much shorter and less extensive transmission line.89
86 See 3 Tr 88; see also Exhibit A-9, Exhibit A-22. 87 See 3 Tr 263-264. Mr. Dauphinais also expressed his opinion that these savings did not justify the choice of the Weeds Lake project at the estimated cost of $45 million in comparison to alternatives. 88 See, e.g., Capra, 3 Tr 84, 95. 89 See 3 Tr 266.
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METC argues that these alternatives do not achieve the same benefits as the
Weeds Lake project or are otherwise not prudent.
1. Fourth Transformer at Argenta Mr. Dauphinais testified that adding a fourth transformer at Argenta station would
cost $12.1 million and require no additional transmission lines to be built.90 The parties
appear to agree that a fourth transformer would satisfy the NERC reliability issue
identified by METC giving rise to its Weeds Lake proposal. But Mr. Capra testified that
it would not be prudent to add a fourth transformer at Argenta:
[T]his option was not considered a prudent option because it would continue to keep all of the Kalamazoo area eggs in one basket. In other words, right now, power for the Kalamazoo area primarily all comes from the Argenta station. If either the 345 kV sources into the Argenta station, the 138 kV facilities that bring the power down to the Kalamazoo area, or the connection between these two sets of facilities were severed, then the greater Kalamazoo and Battle Creek areas would likely experience blackouts or brownouts.91
Regarding the contingency loadings on the Argenta-to-Riverview and Argenta-to-
Morrow 138 kV circuits, Mr. Dauphinais analyzed the impacts in his Exhibit LO-7. His
analysis showed that increased contingency loadings for this alternative would be on
the order of 1% to 2.5%.92 He further testified that the increased loadings could be
addressed by the use of power flow control reactors.93 His Exhibit LO-7 presents this
90 See 3 Tr 255-256; Exhibit LO-7. 91 See 3 Tr 84. 92 See 3 Tr 252; and see Exhibit LO-7, page 5 ([T]he post-contingency parallel power flows on the 138 kV transmission circuits . . . for this alternative . . . are very similar to that for the “B Ave” Alternative”). 93 See 3 Tr 261-262.
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analysis. METC appears to agree.94 He identified the cost of such a solution as less
than $20 million, and possibly less than $10 million.
The parties also appear to agree that the fourth transformer alternative without
the use of power flow control reactors would reduce system efficiency. Mr.
Dauphinais’s analysis showed reductions of .2 to .4 MW;95 Mr. Capra’s analysis showed
reductions closer to 1 MW. With power flow control reactors, Mr. Capra’s analysis
shows that efficiency losses are only .1 MW.96
The fourth transformer obviously would not provide a geographically distant
source of power from the Argenta substation. METC also argues that it is
unconventional, asserting that it is not aware of any substation within MISO that
connects two voltages using four transformers.97 Mr. Dauphinais disagrees that this is a
legitimate concern, asserting that he is aware of at least one similar substation in
Connecticut.98
2. B Avenue Alternative The Landowners also focused on an alternative evaluated by METC in Exhibit
A-1 and rejected in favor of the Weeds Lake project. The parties refer to “Alternative 7”
in that analysis as the “B Avenue” alternative. As described in Mr. Capra’s testimony,
under this alternative, METC would construct a 345 kV substation about 1.4 miles south
of Argenta, and loop the existing Argenta to Robinson Park 345 kV circuit into the new
(“B Avenue”) station. It would also tie the Argenta to Drake 138 kV circuit into the new
94 See Capra, 3 Tr 97; Exhibit LO-49. 95 See 3 Tr 263, 104. 96 See Exhibit A-22. 97 See Capra, 3 Tr 103. 98 See 3 Tr 260-261.
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station, requiring a new 1.9 mile 138 kV right of way.99 The company estimated the cost
of this option as $27 million. Mr. Dauphinais quotes METC’s analysis in Exhibit A-1 to
the effect that this alternative “is one of the working alternatives to address the Argenta
problem without causing any major impact to the system”.
The parties also seem to agree that this alternative would meet the NERC
reliability concern presented by the existing three Argenta transformers.100 METC’s
Exhibit A-1 analysis rejected this option, as Mr. Capra testified: “Proposal 7 was shown
to eliminate the overloads on the Argenta transformers; however it was also shown to
cause an increase in flow on the already heavily loaded 138 kV circuits in the
Kalamazoo area under various contingencies.”101
METC thus argues that this alternative would not reduce the loadings on the
Argenta to Morrow and Argenta to Riverview 138 kV circuits for certain contingencies.
Mr. Dauphinais’s analysis shows that the results for the B Avenue alternative are similar
to the fourth transformer results, with contingency loadings for the Argenta to Morrow
and Argenta to Riverview 138 KV lines increasing 1.2% and 0.9% respectively, and the
Morrow to Battle Creek 138 kV line increasing 2.6% in comparison to the status quo.102
As with the fourth transformer, however, he testified that power flow control reactors
could be used to reduce the loadings.
The parties do not dispute that the B Avenue alternative would not increase
system efficiency. Similar to the fourth transformer alternative, without power flow
99 See Capra, 3 Tr 82. Also see Dauphinais, 3 Tr 250. 100 See Dauphinais, 3 Tr 250. 101 See 3 Tr 84. Also see Exhibit A-1. 102 See 3 Tr 252.
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control reactors, system efficiency would be reduced by up to 1 MW, and with power
flow control reactors, system efficiency would be reduced by up to .2 MW.103
Because the B Avenue alternative would create a new substation, it is not
equivalent to “putting all Kalamazoo’s eggs in one basket” as METC argues regarding a
fourth transformer at Argenta, but this substation would be significantly closer than
Weeds Lake.104
C. Conclusion
In reviewing an application by ITC for a major transmission line in Case
No. U-14993, the Commission made clear that the justification for constructing a line
must demonstrate the need for the line. Citing a long history of making determinations
of public convenience and necessity, the Commission explained:
Cost is clearly an element of justification. The Supreme Court has stated that “The requirement of a certificate of convenience and necessity may enable the commission to . . . keep [] the investment at the lowest figure consonant with satisfactory service.” Huron Portland Cement Co v Public Service Comm, 351 Mich 255, 267; 88 NW2d 492,499 (1958) (quotation omitted). The Commission has held that the issuance of a certificate requires “a showing that the line is cost justified.” January 28, 1993 order in Case No. U-10059, U-10061, p. 50. See, also, Zaremba v Public Service Comm’n, unpublished opinion per curiam of the court of Appeals, issued December 3, 1999 (Docket No. 210673), at 2 (“finding that a proposed project serve[s] the ‘convenience and necessities’ of the public before a CPCN can be issued . . . must include a determination of the economic feasibility of the proposed project.”) Small quantifiable and nonquantifiable public benefits may justify an inexpensive line. An expensive line construction project that will ultimately be funded by ratepayers requires more significant public benefits, that rise above the level of conjecture. The Commission finds that ITC’s testimony regarding reliability and capacity issues was not ignored by the ALJ, but rather was appropriately evaluated in the context of the statutory requirements. The
103 See Exhibit A-22. 104 See Dauphinais, 3 Tr 266.
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ALJ correctly pointed out that a cost/benefit analysis can be helpful in demonstrating the justification for such a project.105
This PFD concludes that the company has failed to make the required justification.
First, despite the Commission’s clear directive that “cost is an element of justification”,
METC has not established that the benefits from the Weeds Lake project justify the
costs. Instead, METC has focused exclusively on the benefits of its project in
comparison to alternatives, with no discussion whether the value of the additional
benefits over and above what is necessary to meet NERC reliability requirements
justifies the additional expenditure.
METC’s analysis began with its effort to identify solutions to the NERC Category
B contingency regarding the potential Argenta transformer overload. Mr. Capra’s
testimony on the “need” for the project is clear on this point.106 METC did not argue the
project is needed to accomplish the short-term benefits of reducing loading on the
138 kV circuits from Argenta to Morrow and Argenta to Riverview, to increase system
efficiency, or to add a separate “geographically distant” source of power into
Kalamazoo.
Following this identification of need, METC evaluated potential solutions without
regard to cost to determine which solution provided the most additional system benefits.
On this basis, it identified the Weeds Lake project, with a $45 million price tag, with the
benefits discussed above. In a discovery response regarding its analysis, METC
responded as follows:
ST-METC-027 Did METC perform a benefit-cost study for this project? If not, please calculate the quantifiable benefits the Weeds Lake project will
105 See February 22, 2008 order, pages 17-18. 106 See 3 Tr 78-79. See also LO-24.
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provide to Kalamazoo and Battle Creek area electric customers. Please provide all calculations and supporting information. Response: The proposed transmission line was approved by MISO as a Baseline Reliability Project and will ensure system reliability and compliance with mandatory planning standards. Benefit-cost studies are not performed for reliability-driven projects. Please see pages 16-17 of Mr. Capra’s testimony [3 Tr 88-89] for a discussion of the proposed transmission line’s quantifiable and non-quantifiable benefits.107
Although the Weeds Lake project has benefits beyond remedying the transformer
reliability issue, METC has not provided any analysis, context, or frame of reference to
show that the additional benefits are cost justified.
In contrast, by identifying solutions to the NERC Category B reliability concern
that do not achieve all of the benefits of the Weeds Lake project, Mr. Dauphinais
correctly concluded that METC has not justified the additional expenditures over the
alternatives. While these alternatives do not achieve all of the benefits of the Weeds
Lake project, Mr. Dauphinais’s analysis is persuasive that either the addition of a fourth
transformer at Argenta or the “B Avenue” alternative would address the reliability
concern with less expense and less destruction.
Regarding METC’s objection that adding a fourth transformer at Argenta would
be imprudent, the company’s explanation makes clear that the real reason it believes
adding a fourth transformer at Argenta is imprudent is because it does not add a
geographically distant source of power into Kalamazoo. The company is already
planning to stage a fourth transformer at Argenta as a “spare” transformer for this area
107 See Exhibit LO-25.
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of the state, so it is not imprudent to locate one there from the standpoint of exposure to
the risk of destruction.108
Regarding METC’s objection that connecting the transformer to the system will
increase flows on the Argenta to Morrow and Argenta to Riverview 138 kV circuits, Mr.
Dauphinais explained that power flow control reactors could be used to balance the
flows, which METC acknowledges. Using power flow control reactors also mitigates
system efficiency reductions for a fourth transformer. Thus, the benefits of the Weeds
Lake project in comparison to use of the fourth transformer at Argenta are first, that the
Weeds Lake project adds a geographically distant source of power to Kalamazoo, and
second, that it increases system efficiency. Both of these benefits should be cost-
justified to meet the justification requirement of section 8(5)(a). Even the cost of
nonquantifiable benefits such as improvements in reliability can be evaluated in
comparison to the cost of other projects under consideration or previously undertaken to
obtain similar improvements.
In addition to concluding that METC has not justified the identified costs of the
Weeds Lake project, this PFD also concludes that METC has failed to address the
undesirable impact the Weeds Lake project would have on the Battle Creek to Morrow
138 kV circuit loadings. METC persuasively argues that a holistic approach to planning
should be undertaken, with the goal of creating a robust system:
METC proposed the Proposed Transmission Line based on a holistic planning process designed to create a stronger and more reliable transmission system by considering many
108 As noted above, METC also argues that no substation in the MISO footprint has two voltage levels connected together through four transformers. See Capra, 3 Tr 103; Dauphinais, 3 Tr 260; Exhibit LO-44. But no safety or operational concerns have been identified that would prohibit this. Instead, it is likely that this degree of redundancy is not common. Note that under the NERC contingency at issue, two out of the three transformers would have to fail to risk overloading the third transformer.
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issues and resolving more than just one problem. The Line will create a longer term more robust and reliable transmission system.109
But the evidence in this record does not establish that the Weeds Lake project is the
result of holistic planning or that it will result in a robust system over the longer term.
Instead, METC’s own analysis indicates that additional projects will be required
to achieve a robust system, projects that were not explained on this record. First, if the
Weeds Lake project is approved, the Morrow to Battle Creek 138 kV line will also need
to be rebuilt, or other remedial measures taken, to address the adverse short-term
impacts of the Weeds Lake project on the loadings for that line. METC has not provided
relevant information regarding its plans. In its reply brief at page 16, METC argues:
There is no reason for METC to “put before this Commission the specific quantifiable benefits that will result from the combined Weeds Lake project and Morrow to Battle Creek re-build,” as asserted by the Landowners, because METC is not relying on such benefits.
Mr. Capra also asserted in his rebuttal testimony, quoted in subsection B above, that
the impact of the project on the Morrow to Battle Creek 138 kV circuit is irrelevant.110 In
making these arguments, METC ignores an important adverse impact of the project,
referred to in Exhibit A-1 as “the aftermath of the Weeds Lake project” and implies that
Mr. Dauphinais misunderstands the company’s analysis. This PFD finds that Mr.
Dauphinais reasonably interpreted the company’s analysis in Exhibit A-1, and the
impact on the Morrow to Battle Creek loadings is a legitimate, and on this record
unaddressed, concern with the proposed project. Given the opportunity to explain the
company’s plans regarding the Morrow to Battle Creek 138 kV circuit, METC declined to
109 See METC reply brief, page 17; also see METC brief, page 36. 110 See 3 Tr 97.
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provide the information. By failing to address this matter in its presentation in this case,
METC overlooks a hidden cost of the project and overstates the benefits.
Second, Exhibit A-1 indicates that METC intends to supplement the short-term
reductions in contingency loadings on the Argenta-Morrow and Argenta-Riverview lines
from the Weeds Lake project on a long-term basis with improvements to the 345 kV
lines.111 This mitigates against expenditures to address the loadings on a short-term
basis, without an evaluation of the timing and impact of the long-term solution. Holistic
planning would ensure that system upgrades targeted at providing more reliable
transmission service to the Kalamazoo area are coordinated.
In reaching these conclusions, this PFD recognizes that Staff supports this
project, which is an important consideration. Mr. Kulesia testified to his opinion that the
benefits of the project justify the construction. But Mr. Kulesia’s testimony cites only Mr.
Capra’s direct testimony, and does not address the testimony provided by Mr.
Dauphinais.112 It does not address the points of agreement between Mr. Capra and Mr.
Dauphinais, as shown in Mr. Capra’s rebuttal testimony and various discovery
responses. Staff does not address the Commission’s directive that transmission
projects be cost justified, and Staff does not address the contingency loadings on the
Morrow to Battle Creek 138 kV line resulting from the Weeds Lake project.
Although this PFD recommends that the Commission find that METC has not
justified the project under section 8(5)(a) of Act 30, the remaining statutory criteria are
examined and findings and recommendations made in the sections below, to facilitate a
timely decision by the Commission should it instead conclude that the project is justified.
111 See Exhibit A-1, page 8 (“This alternative also mitigates the loading . . . for the short-term while waiting for a more robust, permanent solution . . .”) 112 See 3 Tr 357-362.
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VII.
REASONABLE AND FEASIBLE ROUTE SELECTION The parties also dispute whether METC’s preferred and alternate routes for the
Weeds Lake project are feasible and reasonable in accordance with section 8(5)(b) of
Act 30. Putting aside the justification for the project, discussed in section VI above, the
Landowners argue that METC should use a route that utilizes the I-94 corridor.
METC’s application proposes a route and an alternate route as illustrated in
figures 4-2 and 4-3 of Exhibit A-11. As can be seen from these exhibits there is little
difference between the routes, with the parallel lines through the preferred route
following segments 1, 1a, 1d, 28, 31a, 31c and 31d as well as segments 2, 10, 10a,
10c, 28a, 31, and 36, while the alternate route follows segment 1b instead of 1a and
segment 10b instead of 10a.113
As described above, METC hired an independent consulting firm Burns &
McDonnell, to perform a routing analysis, and presented the testimony of Mr. Thornhill,
the project manager, to describe the process. Mr. Capra explained that the consultants
were given certain parameters for the Weeds Lake project:
There are two 345 kV paths that could be utilized to serve the Kalamazoo area, one traveling east from the Argenta station north of Kalamazoo and the other traveling south from the Argenta station west of Kalamazoo. Planning studies were performed that analyzed the projected performance of utilizing each of these two 345 kV paths to add additional support for the Kalamazoo area and the path to the west of Kalamazoo was found to result in the best system performance. When considering the 345 kV path to the west of Kalamazoo, in order to maximize system reliability and minimize system losses, environmental and social impacts, and project costs, as can be seen in Exhibit A-4 . . . METC identified a path between the 345 kV and 138 kV circuits as far from the Argenta station as possible without significantly increasing the path’s length.
113 See Thornhill, 3 Tr 142-144, 148, and Exhibit A-11, pages 41-44.
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Based on these concepts, we gave Burns and McDonnell the general study area to consider when developing a preferred route for the line. Specifically, we indicated to Burns and McDonnell that the line should extend from a point near where the 138 kV circuits turn east to a point along the 345 kV circuits where the new Weeds Lake station would exist.114
Within these parameters, Mr. Thornhill identified 90 route segments comprising
321 potential routes, and evaluated each of these route segments and routes using
19 criteria categorized as “engineering”, “social” or “environmental”.115 Each criterion
has a quantitative measurement associated with it; the measurement for each route
segment was compared to the average, and using statistical techniques, assigned a
z-score reflecting the magnitude of its deviation from the average. The criteria-specific
z-scores for each route/route segment were weighted, and the weighted z-scores used
to prioritize routes.116
Subsequent to this analysis, the most promising 50 routes were further reviewed.
METC rejected routes utilizing the I-94 corridor,117 leaving the routes presented as the
company’s preferred and alternate route as the remaining best choices.118
The Landowners question the routing factors in two respects, but on the whole
acknowledge that the approach taken in Mr. Thornhill’s analysis was reasonable.119
The two issues they raise are that cost was not an explicit criterion, and that the
criterion reflecting “distance paralleling linear developments” was assigned only a
114 See 3 Tr 77-78. 115 See 3 Tr 137. The evaluation criteria are also listed in Table 3.1 of Exhibit A-11, page 22, and are discussed in the report; weightings for each criterion are shown in Table 3-2, page 26. 116 See Exhibit A-11, pages 111-113; Exhibit LO-40. 117 See Thornhill, 3 Tr 154. 118 The company has also made minor modifications to these routes to accommodate agreements with certain property owners, but none of those modifications are at issue in this proceeding. See Thornhill, 3 Tr 133-134. 119 See Dauphinais, 3 Tr 270.
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midlevel weighting rather than a greater weighting. The Landowners argue that the
result of these two choices was to downplay the advantages of the I-94 corridor.120
In response to these concerns, METC argues that cost was reflected in the
routing study through other factors including length of right of way and the number of
acute angles, and that the weighting for paralleling existing infrastructure was
appropriate, in part because it allowed residential impacts to be weighted more
heavily.121
Given that Mr. Thornhill’s routing analysis initially identified a route using the I-94
corridor as having the lowest weighted z-score, however, the Landowners also
challenge METC’s subsequent decision to reject this routing. Mr. Dauphinais testified:
The best performing preliminary routes under the z-score screening, Preliminary Routes 166 and 219, used these three route segments that generally parallel the north side of Interstate 94. These preliminary routes should not have been discarded until after METC and Burns & McDonnell had failed at making a reasonable effort to solve the right-of-way width issues that precluded their use for METC’s Proposed Transmission Line Project.122
The Landowners do not dispute that the right of way within the I-94 corridor was limited
to 160 feet, rather than the 220 feet that METC plans for the project,123 but argue that
METC should have considered alternatives that would make use of the available right of
way. The Landowners challenge METC’s decision that the lines should run parallel to
each other, thus necessitating the 220 foot right of way, rather than two 160-foot rights
of way. They also argue that METC could use quad-circuit structures to allow one pole
to carry both lines. Finally, the Landowners argue that an alternative routing it calls the
120 See Landowners brief, page 23. 121 See, e.g., Thornhill, 3 Tr 152-153; Exhibit LO-38; Exhibit LO-48, page 3. 122 See 3 Tr 272; Exhibit LO-45. 123 Mr. Sutton testified to the width of the right of way required for the proposed transmission line. See 3 Tr 114; Exhibit A-8.
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“Tapping Variant” would allow METC to make use of the I-94 corridor. The Landowners
argue that analysis of this alternative shows it would perform as well as the Weeds Lake
project at a cost of $10 million less.124
METC cites Mr. Thornhill’s testimony, and further responds that it met with
Michigan Department of Transportation (MDOT) officials prior to reaching the
conclusion that using the I-94 corridor would not be feasible.125 Ms. Simpson testified
that Staff agrees with METC’s decision to exclude the I-94 corridor. Exhibit S-5 is a
discovery response from Mr. Thornhill further explaining the company’s decision:
Overall, the southern routes along the north side of I-94 were dropped from consideration because they could not be developed as parallel routes for the entire length between interconnection points. Considerably more new alignment would have been necessary to develop two routes along substantial portions of new alignment rather than as two lines along the same alignment. This situation was a result of obstacles along I-94 including a water/sewer pipeline along the north side of the interstate, adjacent residential and commercial development, communications facilities, and road overpasses of the interstate. Additionally, the Michigan Department of Transportation had indicated plans for expansion of I-94, which would likely include sound walls which could create considerable clearance conflicts with a transmission line. Finally, as the potential routes extended away from the interstate toward the interconnection points, they extended through residential and commercial area where sufficient open and available right-of-way was not identified for the construction of two parallel lines. As it had been determined that development of the project as two parallel lines would be the least impacting to the community, these alternatives using two different, single line routes were dropped from consideration.
METC rejects the use of quad circuits as a less reliable solution, since the loss of
one pole would result in the loss of all four circuits rather than two, and contends that
quad circuit poles present greater threats to worker safety.126 METC also argues that
124 See Dauphinais, 3 Tr 277-277. 125 See 3 Tr 152-154, Exhibit A-42. 126 See Sutton, 3 Tr 124-125.
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the Tapping Variant would create three-terminal and four-terminal circuits, which are
respectively difficult and impossible to protect.127
This PFD concludes that METC reasonably rejected the use of the I-94 corridor
in its routing analysis. As Mr. Thornhill testified, although the I-94 corridor routings had
the lowest z-scores, they did not have less impact than the proposed and alternate
routes.128 The company reasonably identified a 160-foot right of way limitation.129 None
of the proposals to utilize that 160-foot right of way are clearly preferable. Splitting the
lines would require significantly additional right of way and clearing;130 using a quad-
circuit structure raises other reliability concerns; and the Tapping Variant may be difficult
to adequately protect.131 METC also identified other obstacles in addition to the
160 foot right of way limitation in the I-94 corridor, including potential conflicts with
highway expansion and existing infrastructure.132 If the only issue was METC’s
reluctance to use quad-circuit structures over a small portion of the route, further
analysis of the safety issues might be called for.133 But given the multiple obstacles
potentially hindering construction and maintenance, this PFD finds that METC
appropriately rejected use of the I-94 corridor.
On this basis, this PFD finds that should the Commission find the Weeds Lake
project justified, the company has identified reasonable and feasible routes for that
project.
127 See Capra, 3 Tr 106-107. 128 See 3 Tr 152, 155-156. 129 See Thornhill, 3 Tr 154. 130 See Thornhill, 3 Tr 140-141; 144. 131 Mr. Capra testified that three-terminal circuits are difficult to protect and four-terminal circuits are not possible to protect. Exhibit LO-53 suggests it is possible to construct the Tapping Variant without creating four-terminal circuits, but still does not establish that it would be practicable to overcome difficulties protecting the three-terminal circuits created under that proposal. 132 See, e.g. Exhibit S-5, quoted above; see also Exhibits LO-22, LO-23, LO-45, LO-55, A-42, and A-45. 133 See, e.g. Exhibit LO-54.
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VIII.
THREATS TO PUBLIC HEALTH AND SAFETY To show that the proposed transmission line does not pose an unreasonable
threat to public health and safety in accordance with section 8(5)(c) of Act 30, METC
presented the testimony of several witnesses. As discussed in section II above, Mr.
Silva evaluated EMF levels expected with the proposed line and concluded that, while
there are no recognized public exposure limits, the levels would be well below published
recommendations. Dr. Israel, a medical doctor specializing in cancer research,
reviewed the scientific literature regarding EMF exposure and testified there was no
reliable basis to conclude exposure to EMF causes or contributes to cancer. And Dr.
Mercer, a veterinarian and comparative toxicologist, testified that there is no basis to
conclude that exposure to EMF from the pipeline would cause adverse health effects in
animals. No party challenged the testimony of these experts.
Additionally, Mr. Koster testified that the company would obtain all required
environmental permits and comply with all applicable state and federal environmental
laws. Mr. Sutton testified that the transmission line would be designed and constructed
to maintain compliance with the Institute of Electrical and Electronics Engineers and
NESC requirements. No party challenged this testimony.
Thus, this PFD finds that METC has shown that the proposed transmission line
does not present an unreasonable threat to the public health and safety.
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IX.
TOWNSHIP ORDINANCES In its brief, the Township asks the Commission to find that METC must follow its
local ordinances that require a portion of the line to be placed underground. The
Township makes essentially two arguments: first, that the ordinances do not conflict
with state law or regulation because they do not regulate the location or construction of
the proposed transmission line;134 and second, that the Township ordinances are
reasonable and should not be abrogated.135
The Township’s principal ordinance purporting to affect the construction of the
line is Ordinance No. 525, which on its face addresses at least two concerns of the
Township: first, traffic safety; and second, preserving the rural character and zoning
plan for the Village. Ms. Heiny-Cogswell explained the purposes of the ordinance:
As stated in the Resolution, the purpose of Ordinance No. 525 was to: A. Maintain the rural character of the Township B. Prevent and relieve the utility, transportation and infrastructure burden on the Township’s streets serving numerous businesses and accommodating thousands of vehicles traveling at high speeds along the Township’s public highways and streets. C. Enhance traffic operational safety in the Township by avoiding construction of new poles and overhead lines, wires and related equipment and facilities in order to preserve and approve visibility and sight lines and avoid and eliminate vehicular accident impact on poles or overhead lines, wire and other overhead facilities and equipment.
134 See Township brief, pages 15-20, 15 (“Petitioners cannot cite any State law whatsoever which controls or requires the power lines in this case to travel overhead. Therefore, there is no conflict between the local ordinance and State law.”) 135 See Township brief, pages 6-13, 20-23, 20 (“[T]he MPSC must provide some rationale for finding that the Ordinance is invalid.”)
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D. Preserve the Township’s aesthetic environmental by avoiding the increase of unsightly above ground and overhead poles, lines, wires, or related equipment which would instead be out of view of the public. E. Promote the Master Plan and Zoning Ordinance of the Township. F. Support the development requirements of the Township’s Sit Condominium and Subdivision Ordinance. G. Better protect utility lines, wires and related equipment and facilities from weather damage, vehicular accident damage and other causes in order to prevent and reduce service interruptions and accompanying hazards. H. Preserve and enhance the safety of the Township’s residents living in residential dwellings in areas adjacent to and in close proximity to its streets and public rights-of-way, as well as persons traveling on streets from falling poles, overhead lines, wires and other related equipment and facilities. I. Preserve and improve the operational reliability of the utility-related services compared to what would be provided by overhead lines, wires and related equipment and facility. J. Preserve and enhance existing and potential residential dwellings, as well as businesses and business development, particularly in the areas identified as particularly sensitive in the Township’s Master Plan and Zoning Ordinance.136
In its reply brief, METC responds that the ordinances are undeniably preempted
by operation of section 10 of Act 30. METC further argues that underground
construction is prohibitively expensive, citing discovery responses estimating the cost of
underground construction at five to seven times the cost of overhead construction.
Section 10 of Act 30 states:
(1) If the Commission grants a certificate under this act, that certificate shall take precedence over a conflicting local ordinance, law, rule, regulation, policy, or practice that prohibits or regulates the location or construction of a transmission line for which the commission has issued a certificate.
136 See 3 Tr 295-296.
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(2) A zoning ordinance or limitation imposed after an electric utility, affiliated transmission company, or independent transmission company files for a certificate shall not limit or impair the transmission line’s construction, operation, or maintenance. (3) In an eminent domain or other related proceeding arising out of or related to a transmission line for which a certificate is issued, a certificate issued under this act is conclusive and binding as to the public convenience and necessity for that transmission line and its compatibility with the public health and safety or any zoning or land use requirements in effect when the application was filed.137
An ordinance that requires that transmission lines be placed underground clearly
“regulates the location or construction of a transmission line” within the meaning this
section. The Commission has recognized that under state law, the Commission has the
authority to determine how a transmission line should be constructed.138
Recognizing its authority to require aboveground construction, the Commission
has nonetheless reviewed local ordinances prior to making a determination.139 Section
7(d)(2) of Act 30 requires the application to identify local ordinances regulating the
location or construction of the transmission line. Section 8(4) of Act 30 provides: “The
commission may condition its approval upon the applicant taking additional action to
assure the public convenience, health, and safety and reliability of the proposed major
transmission line.” Correspondingly, 8(5)(d) of Act 30 adds as a criterion for granting an
application whether the applicant has agreed to conditions. While local requirements for
underground construction could be evaluated under subsections 8(5)(a) or (b) of Act 30,
the Commission has previously reviewed local ordinances after a discussion of the
justification and routing issues, in the context of whether additional conditions should be
required. 137 See MCL 460.570. 138 See May 31, 2007 order, Case No. U-14681, page 38. 139 See, e.g., May 31, 2007 decision in Case No. U-14861, discussed below.
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On this record, in response to the testimony of Ms. Heiny-Cogswell and Mr.
Milliken supporting the Township ordinances, the evidence presented by METC to
establish that underground construction would conflict with the transmission line is
limited to generalized statements regarding the costs of underground construction and
maintenance.140 Although Mr. Thornhill testified that the crossing of South 9th Street is
within an area zoned industrial or commercial and thus suitable for transmission lines,
he did not discuss the aboveground construction of the project in the context of the
traffic concerns identified in the ordinance and Township testimony.
Likewise, while METC asserted that the cost of underground construction is five
to seven times the cost of aboveground construction, METC did not provide a specific
estimate of the cost of underground construction limited to the 1,500 feet Ms. Heiny-
Cogswell testified the Township was requesting.141 Exhibit A-24 states that the cost of
aboveground construction is approximately $1.7 million per mile. At five times this
amount for underground construction, the cost of 1500 feet of underground construction
(approximately .28 miles) would be approximately $2.4 million, or approximately
$1.9 million more than the cost of aboveground construction. METC also did not
address whether underground construction could be paid for by the Township at its
option.
In contrast, when the Commission confronted the question whether underground
construction should be required to comply with a local ordinance in its May 31, 2007
decision in Case No. U-14861, the Commission had record evidence regarding the
140 See Exhibits A-24 and A-40. 141 See 3 Tr 301. Note that the Township brief also references an additional 2000 feet of underground construction through a portion of the Village Area referred to as the Village Core, but this PFD presumes the Township Supervisor’s testimony regarding the Township’s request in this proceeding is correct.
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costs and other detriments associated with underground construction, as well as
information specific to the community.142 In its January 29, 2008 order on rehearing in
that case, the Commission noted that underground construction would increase the total
construction cost by $25 million, from $15 million to $40 million:
The Commission is sensitive to the concerns of the Township relative to aboveground power lines. Further, the Commission recognizes the Township’s right to enact and enforce ordinances which are not in conflict with state or federal law. The requirement that the lines be underground is not the offensive element of the ordinance in this instance; the Township’s proposal for funding that requirement can not be enforced. If the Township wishes to give effect to the undergrounding requirement of its Ordinance No. 59, it must provide the funding to cover the incremental expense. On this record, it cannot establish a reasonable basis for imposing that expense on ITC or expecting ITC to collect the difference through its rates. 143
Because there is not sufficient record evidence to demonstrate a conflict between
the transmission line project and the underground construction required by the
municipal ordinance and requested by the Township in this proceeding, this PFD
recommends that the Commission condition approval of a certificate on underground
construction of the transmission line over 1500 feet within the Township, or require
METC to make an additional showing that any local benefits of underground
construction do not justify the burden on the ultimate ratepayers for the project. Should
METC choose to make this additional showing, it should also address whether the
Township should be permitted to pay the additional cost of underground construction, if
the Commission accepts the company’s analysis.
The Landowners also argue that preemption of the local zoning ordinances by
section 10 of Act 30 violates the separation of powers doctrine of the Michigan
142 See May 31, 2007 order, pages 37-40. And see January 29, 2008 order, Case No. U-14861, page 6. 143 See January 29, 2008 order, page 7.
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Constitution of 1963, and violates the Landowners’ substantive due process rights.
These arguments are addressed below.
X.
CONSTITUTIONAL CLAIMS
As noted above, the Landowners raise additional arguments not addressed
elsewhere in this PFD, which challenge the constitutionality of Act 30. These
arguments are addressed in turn below, recognizing that administrative agencies are
generally not empowered to find state statutes unconstitutional.
A. Taking
The Landowners argue that grant of a certificate by the Commission constitutes a
taking, and thus Landowners are entitled to a meaningful opportunity to be heard on the
question of the necessity for the taking. This argument is related to the argument
discussed above in section V addressing challenges to the adequacy of the public
meetings held pursuant to section 6 of Act 30. But in this context, the Landowners
appear to contend that the statute itself does not afford due process:
[T]he peremptory rights granted to the MPSC per the Act are not rationally related to a legitimate government purpose, but rather are designed to bestow a private benefit on a for profit entity at the expense of those communities and private property owners who happen to get in the way of METC’s profit motives, and prevent residents from effectively defending their rights to their own property through judicial procedures.144
METC responds in part by arguing that this proceeding is not a condemnation
proceeding, while acknowledging the binding nature of a necessity determination under
Act 30: 144 See Landowners brief, pages 29-30.
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METC’s condemnation power is conferred by Section 5 of The Electric and Gas Corporations Act, MCL 486.251 . . . As an independent transmission company, METC ‘s authority to condemn property is subject to the Uniform Condemnation Procedures Act (the “UCPA”), which provides that a Certificate issued under Act 30 is unconditionally “binding on the court.” . . . Although binding on the issue of necessity, receiving a Certificate in this proceeding would not relieve METC of its obligation to follow the UCPA in all other respects. If private property rights are affected by the Line, METC must still follow the procedures of the UCPA in any eminent domain proceeding that contain a plethora of procedural and substantive safeguards protective of private property rights. The constitutional safeguards the Landowners claim are threatened if the Commission grants a Certificate are secured by the UCPA. See Michigan Dep’t of Transportation v Tomkins, 481 Mich 184, 749 NW2d 716 (2008)(UCPA to be construed consistent with constitutional guarantees).145
This PFD notes that an additional constitutional safeguard is the availability of
judicial review of the Commission’s decision in this matter, pursuant to Art. 6, §28 of the
Michigan Constitution of 1963, which provides in pertinent part:
All final decisions, findings, rulings and orders of any administrative officer or agency existing under the constitution or by law, which are judicial or quasi-judicial and affect private rights or licenses, shall be subject to direct review by the courts as provided by law. This review shall include, as a minimum, the determination whether such final decisions, findings, rulings and orders are authorized by law; and, in cases in which a hearing is required, whether the same are supported by competent, material and substantial evidence on the whole record.146
B. Substantive Due Process
The Landowners argue that by allowing a Commission decision to exempt METC
from Oshtemo Township zoning ordinances, Act 30 violates the substantive due
process rights of the Landowners. The principal case cited by the Landowners is a
Pennsylvania case, Robinson Township v Commonwealth of Pennsylvania, 52 A3d 463
145 METC reply brief, pages 29-30. 146 See also MCL 462.26 and MCL 460.575.
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(PA Cmwlth 2012). In the Robinson case, the Pennsylvania court reviewed a statute
that prohibited municipalities from enforcing or adopting zoning ordinances limiting
hydraulic fracturing or “fracking” operations. The Landowners quote the following
passage from the court’s decision:
[B]y requiring municipalities to violate their comprehensive plans for growth and development, [the Pennsylvania statute] violates substantive due process because it does not protect the interests of neighboring property owners from harm, alters the character of neighborhoods and makes irrational classifications—irrational because it requires municipalities to allow all zones, drilling operations and impoundments, gas compressor stations, storage and use of explosives in all zoning districts, and applies industrial criteria to restrictions on height of structures, screening and fencing, lighting and noise.147
Further, they argue that Michigan law supports the same result.148
In response, METC argues that the Michigan Supreme Court has implicitly
rejected this argument in its decision in City of Taylor v The Detroit Edison Company,
475 Mich 109; 715 NW2d 28 (2006), holding that municipalities cannot regulate in a
manner inconsistent with state law.
This PFD finds that section 10 of Act 30 clearly gives the Commission the
authority to approve a transmission project that conflicts with local regulations on the
location or construction of that transmission line. Ordinarily, administrative agencies
lack the authority to find statutes unconstitutional.
147 See Id., 52 A3d 463, 484. 148 See Landowners brief, page 35, n89.
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XI.
CONCLUSION
Based on the foregoing discussion, this PFD recommends that the Commission
find that METC complied with the requirements of sections 6 and 7 of Act 30 by holding
public meetings, offering to meet with municipal officials, and filing an application
containing the required documentation.
This PFD further recommends that the Commission deny METC’s application for
a certificate of public convenience and necessity based on the conclusion in section VI
above that METC has failed to show that the benefits of the project justify the financial,
environmental, and social costs of the project as required by section 8(5)(a) of Act 30,
MCL 460.568(5)(a).
Should the Commission nonetheless conclude that METC has made the requisite
showing that the quantifiable and nonquantifiable benefits of the project justify
construction and serve the public convenience and necessity, this PFD recommends
that the Commission find that METC has identified reasonable and feasible preferred
and alternate routes for the project. Further, this PFD recommends that the
Commission find that the project does not present an unreasonable threat to the public
health and safety. Regarding the Township’s request that a small portion of the
transmission line be constructed underground, this PFD recommends that the
Commission grant the request or allow METC an opportunity to demonstrate that the
public convenience and necessity requires aboveground construction.
Should the Commission grant a certificate for the project, the $45 million
estimated cost should be used as the stated cost of the project.
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MICHIGAN ADMINISTRATIVE HEARING SERVICES For the Michigan Public Service Commission _____________________________________ Sharon L. Feldman Administrative Law Judge