DAY TWO / COVER STORY: SWEPCO scrutinized as hearing continues in Little Rock
Editor's note: Following is an online sneak-peek at this week's Citizen cover story, which will be on newsstands around dinnertime this evening (Wednesday). (We thought such a big story was worth sharing online immediately!) In the printed edition only, readers will find two bonus stories related to the SWEPCO issue, one of which reports on two elected officials who have just come out in support of local opponents to SWEPCO's power line.
LITTLE ROCK -- With dramatics akin to the infamous "Miracle on 34th Street" courtroom scene, the Public Service Commission hearing continued Tuesday on Southwestern Electric Power Co.'s application for approval to build a 345,000-Volt transmission line through Carroll and Benton counties.
Testimony and cross-examination of witnesses Tuesday focused on what SWEPCO opponents called major problems with the utility's Environmental Impact Study that accompanies its application for the mega-power line. It made for a long, dry afternoon of picking apart not only the language of the study by SWEPCO experts but also the methods by which the study was conducted.
In the middle of the day came the brief dramatic scene, which served as a sort of respite for many of the dozens of spectators in the hearing room as they silently watched -- smiles spreading across the faces of many in the opposition group on hand.
By about 15 minutes after Tuesday's lunch recess ended, the palpable tension had resumed along with the proceedings, being held at the Commission offices in downtown Little Rock, as witness testimony continued before the commissioners who will decide whether the mega-line will be built -- and if so, then where.
Then, a scene played out that was reminiscent -- although on a smaller scale -- of the classic holiday film's courtroom scene wherein defenders of Kris Kringle bring in sack after sack of "letters to Santa" to help prove their point. When SWEPCO opponents Save The Ozarks and their attorneys were asked Tuesday afternoon about the thousands of public comments that have been submitted on SWEPCO's power-line route, the room fell silent as two Save The Ozarks members immediately marched out of the hearing room, returning seconds later struggling to carry in tall stacks of 6-inch-thick, giant binders overstuffed with public comments opposing SWEPCO.
Though the movie reference may have been lost on some in the room, the point was made: The public overwhelmingly and almost uniformly opposes SWEPCO's proposed power line -- and they, nor STO -- will be ignored, the STO members seemed to be saying with the display of paper firepower.
Administrative Law Judge Connie Griffin is overseeing this week's proceedings; she also overheard the public hearings held in Eureka Springs and Rogers last month. She is required by law to issue a ruling within 60 days, and then the actual three-person Commission will decide whether to accept or reject her recommended ruling -- and they will ultimately alter the future of many landowners and their properties across a 48-mile swath through Benton and Western Carroll counties.
SWEPCO has asked for permission to construct an enormous power line -- the second-largest size currently being constructed in the United States -- from its Shipe Road station in Benton County to a proposed new substation on the Kings River near Berryville. The line would be 48 to 50 miles long, and the power poles would be about twice the height of the county's tallest current poles, at 160 feet apiece. Herbicides would be used to keep the extra-large right-of-way cleared all along the route -- something that has many area residents who rely on well water very worried.
WHERE WILL IT END?
Earlier on Tuesday, Melinda Montgomery, transmission planner for Entergy, testified that Entergy has earlier this month approved plans to move forward -- but only if SWEPCO's new power line is approved -- with building an interconnection facility at SWEPCO's proposed Kings River substation so the electricity being brought to the substation by the new 345 kV line could be divided and transferred eastward.
Her testimony confirmed the basis of a recent report in the Lovely County Citizen detailing the energy industry's beginning-level plans to continue the proposed SWEPCO 345kV power line eastward across Carroll County and northern Arkansas, in at least one if not two enormous new power lines -- one of which could be even larger.
According to planning documents used by two of the overseeing Regional Transmission Organizations that oversee SWEPCO, Entergy and other Northern Arkansas utilities, two new mega-power lines could be constructed and used to ship eastward the power produced by SWEPCO and transmitted the new Kings River substation. One of those lines could be as large as 500 kiloVolts, and the other would be 345 kiloVolts, according to documents obtained by the Citizen.
Regional Transmission Organizations were tasked and authorized by the federal Energy Policy Act of 2006 to manage the interconnectivity of the nation's electrical grid; they've been given regulatory authority to instruct utilities as to when and where new power lines should be built. It was SWEPCO's overseeing RTO, Southwest Power Pool, that issued to SWEPCO in 2008 a Notice To Construct the 345kV line currently under consideration.
Meanwhile, the first step, an interconnection that would allow Entergy's current lines already in place to hook up with SWEPCO's proposed Kings River substation, is now officially planned as Entergy's next move, if and when SWEPCO's project is approved, Montgomery testified Tuesday.
Montgomery referenced a new "energy connectivity" study for Arkansas completed in July by American Electric Power, which is SWEPCO's parent company. She said Entergy then used that study to finalize its own updated "Energy Construction Plan" for the coming several years, and that Entergy plan, which was completed and released on Aug. 7, includes the new interconnection necessary to make use -- outside of Carroll County -- of the new transmission line and substation that SWEPCO wants to build here.
Entergy formulated its construction plan to help SWEPCO, Montgomery acknowledged. ""The plan is intended to facilitate the Shipe Road to Kings River 345 kV line," she testified.
Upon cross-examination by Eureka Springs resident, intervenor Jeffrey Danos, Montgomery said that -- if SWEPCO's new mega-line is approved -- Entergy's application to build the interconnection facilities at Kings River would be submitted to the Public Service Commision sometime in 2014. If SWEPCO's plan is not approved, Entergy will not move forward with any further construction plans in the area in the immediate future, she said.
MANIPULATING THE STUDY?
Later on Tuesday morning and throughout the afternoon, SWEPCO witnesses who worked on their Environmental Impact Study, required as part of the utility's construction application, were grilled by STO lead attorney Mick Harrison.
Harrison asked hundreds of questions about not only the "experts'" actual qualifications and work experience, but primarily about the methods in which the study was conducted.
At the heart of the issue was a ranking system the study authors used to evaluate which of more than 100 potential routes would the most feasible for SWEPCO -- and the most likely to gain APSC approval.
Early in the cross-examination of study author Stephen Thornhill, associate project manager for Burns & McDonnell Engineering Co. in Rogers, STO attorney Harrison noted that much of the Environmental Impact Study for the proposed SWEPCO project included the exact same text of earlier EIS's submitted by Burns & McDonnell for other utility project applications to the Commission.
Thornhill replied that yes, previous studies were used as a "template" for this one, and some of the wording may not have been ultimately changed or taken out.
The suspect wording including references to endangered bats believed to be making their homes in the many caves along portions of the three proposed routes, but particularly along Route 33. On an early draft of the EIS, Thornhill in a side comment had written "double check this data; in most cases (the bat habitat areas) can easily be spanned" or built around.
Harrison questioned Thornhill as to why he'd made a conclusion about the bats before he had apparently seen any of the data regarding their locations along the routes. Thornhill replied that he'd based his conclusion on "typical" findings from EIS's for other projects.
Next Harrison quizzed Thornhill about the EIS's rating system for the potential routes that had been identified. Seven criteria were used to "score" each route -- but one of those criteria, "Constructability" or how difficult construction would be in each location along the route, had been deleted from all consideration during the EIS revision process.
"I thought we took this out?" Thornhill had written as comment on a draft revision of the EIS. He was referring to the poor Constructability scores of the preferred proposed routes, Harrison noted, who asked why Thornhill and his coworkers had, in mid-process, decided to change the scoring system after seeing the results.
"There were concerns that that Constructability score was prejudicing the results and the decision was made to remove the Constructability criteria and scores," Thornhill replied, prompting a barely audible gasp by opponents in the audience.
"Wouldn't each criteria have the potential to prejudice the outcome by having a score that would be considered poor?" Harrison asked him.
"Yes," he answered, before continuing with an explanation of sorts. "In doing the Constructability score, we found that the routes with fewer segments had better scores, meaning those routes were supposedly more constructable even though in many cases those routes were longer and had much rougher terrain -- so they had better scores, the routes with fewer segments, even though we had determined they shouldn't have.
"In looking at the different criteria, we said this doesn't make sense, and the problem was the Constructability scores were out of whack," Thornhill added.
"How would you know a certain route's score was out of whack -- simply because it scored low -- just by looking at it?" Harrison inquired.
"The analysis just didn't make sense," Thornhill said. "Looking at the actual route, it didn't pass the smell test you might say."
"Were routes that could have been dropped retained as a result of the Constructability criteria being removed from the scores?" Harrison asked.
Here, Thornhill hesitated, eventually replying: "No, but the Constructability score process was flawed. So the rankings within that were useless to this analysis. We were not able to develop a Constructability score that made sense in these circumstances."
Harrison noted that trying to shape the scores and methodology to "make sense in these circumstances" seemed like a backward method in a study that was supposed to be scientifically sound.
Thornhill defended the study and scoring system, and said that removing one criteria would not likely "wholesale change" a route's score substantially. He could not, however, say for certain that removing the Constructability score hadn't altered the SWEPCO routes' scores substantially. He also could not say whether any of the six originally proposed routes -- particularly the preferred Route 33 -- had scored poorly on Constructability. Instead, Thornhill argued that it wasn't really very relevant anyway.
Since a score is an average of several criteria, removing one criteria is not going to change a score of a route that much, Thornhill said. "A low score is going to be a low score."
"Well, really, that's only true depending on which criteria you end up deciding to use," Harrison retorted.
The hearing was scheduled to continue with STO expected to call its first witnesses sometime Wednesday, after SWEPCO finished with its witnesses. Officials have said it will likely last through week's end, depending on how long each witness ends up being cross-examined.
AWAITING A DECISION
An order including Judge Griffin's decision on SWEPCO's application to build the power line is required by law to be issued within 60 days of the end of the hearing.
However, the final decision rests with the actual three-person Public Service Commission, which may take any of four actions once Griffin's decision is released:
* The Commission may affirm her decision and adopt it as their own;
* The Commission may reject and overturn her decision in full;
* The Commission may modify her decision; or
* The Commission may take no action, and after 30 days of no action, then the judge's decision becomes the final decision of the Commission.
Three routes remain as possibilities: Routes 33, 108 and 109.
Route 33, at a cost of about $96 million, travels from Shipe Road near Centerton northeast between Bentonville and Bella Vista, through Garfield and Gateway, traveling north of Eureka Springs through the Beaver and Holiday Island areas over eastward to the new substation on the Kings River near Berryville.
Route 108, at an estimated cost of about $117 million, travels from Shipe Road station southward along the western edge of Cave Springs, across Bethel Heights, then south into Washington and Madison counties, then north near the Kings River to the new substation to be built near Berryville.
Route 109, at an estimated cost of about $102 million, would go north from Shipe Road along the west side of Bella Vista to the Missouri state line, then travel eastward before re-entering Arkansas north of Eureka Springs near the Holiday Island and Beaver areas, then continue eastward to the Kings River substation.
The target date for completion and operation of the project is June 2016. If approved, the project construction could begin as early as March 2015, with right-of-way acquisition and clearing to begin next year.
DAY ONE RECAP
After the first day of testimony Monday, the tense and emotional Public Service Commission hearing on SWEPCO's proposed mega-power line in Carroll and Benton counties was deemed "ahead of schedule" as it went into recess till Tuesday morning. (That determination was rescinded by late Tuesday, which saw a full day focus on just a few witnesses, with many remaining to be cross-examined, officials said.)
The hearing on Monday moved more quickly than expected as 10-minute opening arguments were heard by each of the parties who were present, followed by fewer-than-expected public comments and then the beginning of witness testimony and cross-examination.
Opponents were holding heads high throughout the first day of proceedings and said Monday evening that they felt good about the first day of the hearing.
Doug Stowe, a Eureka landowner who would be affected by one of SWEPCO's routes and a founder of opposition group Save The Ozarks, said he and others with the group such as Pat Costner -- on hand at the front of the room Monday to assist Save The Ozarks attorneys -- were happy to be taking part in the entire process.
"It is amazing how the intensity of the last three months has come down to this week in which our attorneys (and I include Jeff Danos in this) are grilling the witnesses we've met before only as case files," Stowe told the Lovely County Citizen. "Our legal representation is top-notch, and the witnesses seem to have never encountered any thing like his cross-examination before," referring to the fact that SWEPCO's witnesses seemed reluctant, at best, when being questioned by opposing counsel.
"At the beginning of the hearing, in his introductory remarks, SWEPCO attorney David Matthews noted that this hearing was the time in which all the lies told about SWEPCO would see the light of day and the truth would be made clear. So far, that has not been the case," Stowe added. "He also insists that the sole duty of the Arkansas Public Service Commission is to choose which route the power line will follow" and not whether the power line should be constructed in the first place -- which is the Commission's first duty under the law.
"My own feelings for today are that our STO attorney set the stage for more to come in the following days. That makes it exciting to be here and to be a part of this," Stowe said.
The opening statements were tense and brimming with emotion from the start, when SWEPCO attorney David Matthews referenced some "nasty accusations" that have been levied by some opponents during the build-up to this week's proceedings.
"My clients have endured an incredible number of offensive, uninformed and event incendiary charges against SWEPCO and its employees," Matthews said, pointing toward Eureka residents in attendance and the attorneys for opposition group Save The Ozarks. "In these public comments, my clients have been characterized as greedy, idiotic, unethical, immoral, rapists and even monkeys ... and these things were difficult to hear without responding.
"SWEPCO and its employees were able to withstand these accusations and comments because they knew that one day they'd be afforded the opportunity to state their case without fear of being shouted down or assaulted. That day has come."
Matthews, in his opening statement, covered several topics, beginning with an explanation of how SWEPCO's proposal originated; the utility -- back in 2008 -- was ordered by a Regional Transmission Organization, called Southwest Power Pool, to construct the new line, he noted.
SPP is one of several U.S. RTOs authorized by the federal Energy Policy Act of 2005 to oversee the nation's electrical grid -- and to instruct utilities on when and where new lines are needed.
It is unclear whether SPP -- because of its authority granted by the Energy Act -- or the APSC has the ultimate authority on whether the power line will be constructed, officials have said, because a conflict between the two entities has not yet occurred -- nor been argued in court -- in such a case as this.
Matthews, however, in his opening statement spoke as though there could be no possible disagreement between state and federal authorities on whether a new power line is needed and should be constructed. Such is not the case, several officials have told Carroll County Newspapers.
"The federal government and the state government have determined that regional transmission entities operate in the best interest of the public. ...," he said. "Evidence shows this line is needed and needed now. To find otherwise would put in jeopardy the supply of electricity in the region and beyond."
Here he referenced the wildfire in Yosemite and its threat to cut off the power supply in San Francisco as an example of why the Northwest Arkansas power line is needed, indicating that the line is meant to serve areas far outside Northwest Arkansas -- despite many claims that were repeated by the energy industry Monday that the line is needed to serve the "growing population" in the immediate area.
Steve Williams, attorney for Arkansas Electric Cooperative Corp., also hinted at the utility's plans to sell and transport the added electricity output to areas, when in his opening statement he said the new route would "strengthen the transmission system in Northwest Arkansas and improve AECC's ability to move electricity across the seams" to other utilities around the country, he said.
On Monday, only four individuals gave public comments -- compared to the more than 350 who signed up to give comments at last month's Eureka and Rogers public hearings.
The first individual to offer comment Monday was a woman who lives just over the Missouri state line outside Pineville, Mo., and said she and many of her neighbors have yet to be notified -- months after the legal deadline -- about SWEPCO's proposal, which includes a route that would traverse her property.
Jamie Harvey presented her own comment as well as affidavits from more than a dozen of her neighbors, none of whom have been contacted by SWEPCO, they said.
Arkansas law requires that a utility give proper, speedy and early notice to landowners who would potentially be affected by any proposed new facilities, including power lines, so those landowners may participate in the decision-making process such as this week's hearing in Little Rock.
Harvey's comments showed that SWEPCO has not met the legal requirements to have its application to build the new power line and substation approved, opponents of the proposal said Monday -- and it was not the only time such criticism was leveled at the utility during the hearing's opening day.
Also on hand to deliver a public statement opposing SWEPCO's proposal was KJ Zumwalt, owner of Caribe Restaurant and Cantina on Highway 62 West in Eureka.
Public comments were allowed after the parties' opening statements, heard at the opening of Monday's hearing. Only individuals who have not already commented at a previous public hearing were allowed to speak, and they were limited to three minutes apiece.
FIRST WITNESSES CALLED
The claims that Carroll County needs the route because of the industry's projections that the population is growing substantially were met with blatant disbelief Monday, particularly during witness cross-examinations, as Eureka resident Jeff Danos and Save The Ozarks' lead attorney Mick Harrison grilled utility industry witnesses on how and why they are predicting growth in Carroll County when U.S. Census numbers from 2012 actually show a stagnant population level here.
One of the utility witnesses actually relied on a prime argument of SWEPCO opponents to "explain" why SWEPCO and others believe more future residents will need more electricity in the coming years.
Ricky Bittle, vice president of planning for Arkansas Electric Cooperative Corp., said when asked why the energy industry is predicting population growth here, replied:
"Many people have said even in opening statements that they decided to move into (Carroll County) because they think it's a pretty area. I expect that will continue."
A vocal contingent of the 100 or so spectators and witnesses in the room audibly responded with a collective, disbelieving groan.
Following the opening statements, a few witnesses for SWEPCO and the energy industry were called. Witness testimony and cross-examination was scheduled to continue throughout Wednesday and predicted to last another two or more days.
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