SWEPCO hearing recesses - Opponents' witnesses not allowed to testify; project approval predicted

Thursday, September 5, 2013
At the SWEPCO hearing in Little Rock last week were Pat Costner, from left, Michael Shah, Richard Quick, Faith Shah and Jeff Danos. Other residents who attended on some days included Beau Satori, KJ Kumwalt, Pam Quick, and James and Teresa DeVito.

LITTLE ROCK -- During the final two days of the Arkansas Public Service Commission hearing on Southwestern Electric Power Co.'s proposed 345,000 Volt power line through Carroll and Benton counties, the expert witnesses for opponent group Save The Ozarks were barely allowed to speak -- in some cases not at all -- as their testimony was admitted in written form only.

Administrative Law Judge Connie Griffin, who was overseeing the hearing, called an indefinite recess in the proceedings just before 5 p.m. on Friday, noting that because of the magnitude and depth of the case, she may need to call the attorneys and even some witnesses back for additional questions in the near future.

Griffin said she needed "more time and information" on both sides' arguments, and she said she would issue an order this week requesting legal briefs from all the parties' attorneys, highlighting the primary points of their arguments.

After the hearing, leaders of opponent group Save The Ozarks predicted that the Commission will ultimately approve SWEPCO's proposed power line, and then opponents will appeal their decision to the Court of Appeals.

It remained unclear as of press time Wednesday when Griffin would officially adjourn the hearing, which would start the clock on the 60-day deadline for her to announce her recommended ruling in the case.

Griffin is required by law to issue a ruling within 60 days of the hearing's adjournment, and then the actual three-person Commission will decide whether to accept or reject her recommended ruling -- and their decision will ultimately alter the future of many landowners and their properties across a 48-mile swath through Western Carroll and Benton 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 54 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 7,000-plus Eureka area residents who rely on well water very worried.


Before the expert witnesses for Save The Ozarks were called, cross-examination of the utility industry's experts and the APSC staff focused on holes in SWEPCO's and the APSC's prep work in the utility's application for approval.

APSC chief engineer Tom Cotten, who was responsible for fashioning and submitting the APSC staff's favorable recommendations on SWEPCO's application, was grilled by Harrison about how closely he followed -- or even knew -- state law governing the required components of an application such as SWEPCO's. A clearly defensive Cotten acknowledged that he did not know whether special permits (such as a clean water permit) for the proposed line would be required by the U.S. Army Corps of Engineers; they would be, according to the state law Harrison read into the record at the hearing.

Attorneys for Wal-Mart Stores Inc. and the cities of Garfield, Gateway and Springfield wait their turns at the table on the left, while Eureka-area residents Jeff Danos and Lori Bennett, at right, are amused by something a witness says during the hearing.

Harrison also brought up the eight factors required to be considered for an application like SWEPCO's. Cotten acknowledged on cross that he had considered only seven of the requisite eight factors and had overlooked the "harm to private property" consideration. Cotten instead claimed that he believed harm to private property to be an optional rather than a mandatory consideration.

When asked, Cotten confirmed that he has not walked any of the proposed routes for the power line, viewing them only from publicly accessible access points; he said he was in town for the site visit for two days.

"Were you looking out for karst features?" Harrison asked.

"No," Cotten responded.

"Did you attempt to do any visual impact tests for how the power line might affect the area's aesthetics?"


"Did you review the routing analysis by SWEPCO?"


Cotten clarified that he had reviewed the results of the analysis -- in other words, the final decision on which routes SWEPCO chose to propose -- but he did not see nor was he offered the actual route analysis that SWEPCO performed during its decision-making process, instead taking the utility's word for which routes would have the least negative impact on the region and its residents.


Opponent and intervenor Jeff Danos, a Eureka Springs area resident, and the attorney representing Garfield and Gateway both questioned Lanny Nickell, vice president of Southwest Power Pool, who acknowledged on cross-examination that along the proposed routes in Carroll County, there has not been -- nor is there projected to be -- any power outages or danger of outages because of line overloads in the area that would be traversed by the line.

Nickell testified there were "numerous risks" of potential outages in Northwest Arkansas, but the only serious areas of concern he listed were the Flint Creek to Brookline route and the Neosho, Mo., to Brookline route, both considered the "most severe" problem areas, he said. Neither of those routes are located in Carroll County and any boost in reliability along those routes would largely benefit Missouri ratepayers, the attorney noted.

Nickell also said there exist some risks of overload in Berryville and Green Forest that this line would help alleviate, but he noted the worst risks in the region are in Missouri, particularly in the Washburn and Neosho areas.


After Nickell's testimony ended, Save The Ozarks' lead attorney Mick Harrison began calling up their witnesses, led by STO expert Dr. Hyde Merrill, a proponent of newer energy technologies, and aesthetics expert Richard Smardon, expected to testify that the power lines would drastically damage the beauty -- and major tourist draw -- of the area surrounding the proposed routes.

Neither Merrill nor Smardon were allowed to speak at all. Because SWEPCO and the other utility groups declined to cross-examine the two, in accordance with APSC hearing regulations, Harrison also was not allowed to ask any questions of them -- meaning they were not allowed to testify verbally.

Next up was STO co-founder and Eureka resident Doug Stowe.

STO attorney Mick Harrison, standing at left, confers with SWEPCO attorney David Matthews as STO Director Pat Costner shuffles through some evidence on Friday.

Judge Griffin did allow Stowe to say just a few words -- "We have been like animals caught in a steep trap since receiving the SWEPCO letter on April 1; we are trying our very best to defend our property and way of life," he said -- as he clarified a few statements in his written testimony, previously submitted. After just a few sentences, Stowe was dismissed from the witness table.

Next up were Pat Costner for STO and opponent intervenors Lori Bennett and Danos. None were questioned by SWEPCO, et al, so not one of them was allowed to testify. Costner was asked by the judge to explain which routes would traverse her property, which she did using a lighted map on a large projection screen. She was allowed to add some information about the physical features of her land that would be affected by the power line, such as caves and springs and the like. Then she, too, was dismissed from the witness table.

SWEPCO and its partners declined each time to cross-examine the opponents' witnesses, so those witnesses were also barred from testifying.


Danos, who acted as his own attorney -- and earned high accolades for doing so -- throughout the hearing in Little Rock, surmised later that SWEPCO wished to avoid having their opponents elaborate any further -- or evoke any emotional responses -- on their written testimony that had been pre-filed. "I also suspect there's a chance they just wanted to get out of the hearing by Friday afternoon," he said.

Danos and other opponents had measured but high hopes afterward that the hearing did its job of showing both sides' views -- andthe utility industry's actions thus far throughout the application process -- despite the fact that STO witnesses did not get to testify at the hearing.

"I think it went very well, actually," Danos told the Lovely County Citizen afterward. "Although our expert witnesses weren't allowed to speak, SWEPCO and SPP did an excellent job of exposing their noncompliance with state law application requirements, and basically proved what we had suspected all along -- that the "need" presented with their application is bogus and that this is part of a much larger regional project to move power past us, not for us."

"The APSC staff engineer (Tom Cotten) also displayed that he had given the application very little review, and that he wasn't even aware of the items that must be included in an application per state code," Danos added. "It's as if he just accepted everything presented without any verification or review. Overall, I feel as though there is ample evidence on the record to support a denial by the judge, or if need be, the Court of Appeals."

Stowe of STO said the reason the attorneys from the utility industry did not cross-examine any of the opposition witnesses was so they could allow their own witnesses to have the last word unchallenged.

"It was a tactic we expected. If they had asked any questions, they would have had problems on redirect because some of the things they were saying could have challenged and laid bare by our witnesses," Stowe explained. "I was disappointed that the APSC staff neglected to ask questions, and that the judge failed to take advantage of our witnesses' expertise, as Hyde Merrill would have helped them to understand a few things more clearly. And Pat (Costner) had a virtual mountain of information to share if they would have been open to learning a few things."

STO leaders do not expect a favorable decision from the Commission when all is said and done, he said, and it will likely be decided by the Arkansas Court of Appeals.

"Our attorney was very careful in making certain that all the witnesses' testimonies were clearly stated so as to eliminate ambiguity when the transcript is read by the Court of Appeals," Stowe added.

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