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Comment Period issued by the PUC 11-5-20… erroneously?

Well, this is embarrassing… for the Minnesota Public Utilities Commission.

It seems they’ve flubbed up the entire process for Line 3 and now, they’ve flubbed up the handling of the 10-27-20 Petition for Investigation and Complaint Concerning the Capacity of the Enbridge Mainline System made by Honor the Earth.

Paul Blackburn had to explain to them how the law works in a subsequent memo, later the same day. He beautifully explained to the PUC how Minnesota law actually works. I will walk you through it all here.

The HTE 10-27-20 filing was discussed in last week’s blog Enbridge Lied. How many will die? Read there if you want to get up to speed before continuing.

Will Seuffert, Executive Secretary of the PUC, appears to be in over his head – or is it Chair Katie Sieben directing the show erroneously? This comment period Notice is full of issues as Paul states in his response memo requesting clarity on the PUC posting. As a long-time follower and deep reader of the Line 3 documentation, I was immediately struck by what appears to be a request from the PUC to Enbridge asking them to explain THE PUC’s OWN JURISDICTION TO THEM. WTF??? [I mean, we all know the PUC has bent over backwards to accommodate Enbridge’s storyline but are they now allowing them to determine Minnesota law?]

In Paul’s response, it is made clear that the PUC is confusing the issue and violating the processes given by Minnesota statutes.

Gotta give you Paul’s first page too for equal billing, eh? FFS, PUC, try to keep up!!

When and if the PUC finds it does have jurisdiction and files to secure a 20-day response from Enbridge on the complaint… (not the PUC’s jurisdiction), they also MUST provide a 30-day public comment period on which procedures should be followed – contested case hearing, informal proceeding, expedited proceeding, “as well as give notice of a 10-day reply public comment period for responses to the initial procedural comments. The 30-day public comment period allows commenters to see Enbridge’s answer before filing their initial comments. In such notice, the Commission should also provide public notice of the right to file a petition to intervene in the complaint proceeding.” In THAT situation, HTE is provided a chance to respond (also within 20 days), to Enbridge’s response on their Complaint.

Only after ALL THAT has been done can the PUC determine which procedure to use to resolve the complaint. Once they order said procedure, they also must rule on all petitions to intervene, if any.

Paul goes on in his letter to explain why the PUC’s Notice of Comment Period is so erroneous and confusing.

There is no reason for the PUC to ask Enbridge if they have jurisdiction as Minn. R. 7829.1800, subp. 1 says the Commission shall determine jurisdiction and whether there are reasonable grounds to investigate the allegation. Minn. R. 7829.1800, subp. 2 says that IF the Commission finds the above to be true [and this MUST be done BEFORE they file to the respondent (Enbridge)], they THEN serve the complaint to the respondent… for an answer within 20 days.

Under the regulations, it is not appropriate for the Commission to seek
comment on jurisdiction and whether reasonable grounds exist at the same time that it has apparently (albeit without a formal order) required an answer within 20 days from Enbridge.

Service of a complaint and order is not the same thing as issuing a notice for a “comment” period. The Notice, therefore, appears to conflate the reply period to the answer required by Minn. R. 7829.1800, subp. 3, with the reply period to initial comments period provided by Minn. R. 7829.1900, subp. 3.”

Paul Blackburn, Letter for Clarification to PUC Secretary Will Seuffert

Indeed. The new Executive Secretary of the PUC appears to be unaware of the expected procedures given by the Minnesota Legislature in statute. In addition, Paul clarifies that “there is no right for other parties to reply” on the Complaint as that is reserved for the Complainant (Honor the Earth).

As is made clear in Minn. R. 7829.1900 COMMISSION ACTION ON FORMAL COMPLAINT; COMMENTS, the process requires the PUC to 1) determine the nature of the proceedings, 2) allow initial comments within 30 days of the commission order requiring answer to the complaint (complainant, respondent, Office of AG and any other known parties), 3) Allow reply comments for 10-days after that, and 4) allow for intervention by additional parties (said petition may be combined with the comments on the complaint).

Paul notes several possible outcomes the PUC may have been intending…

  1. Establishing a public comment period? Oops. Didn’t include the word “public” and the Notice states the deadline for comment is limited to those “Enbridge” provides to answer HTE’s complaint. [However, Minn. R. 7829.1900 subps. 2 & 3 state that any “person” may comment on the procedures to be used.]
  2. If intended as a public comment period, the PUC used the wrong LENGTH of comment period as statute requires “30 days”, not 20. [As Paul puts it, “Thus, if the Notice was a proper way to order an answer, which it is not, then the initial public comment deadline would be 30 days after November 5, or December 7 (given the weekend), and the reply comments would be due ten days after that, or December 17.”]
  3. IF the intention was for a public comment period, Paul additionally notes, “the Notice incorrectly states that reply comments are limited to replies to just Enbridge’s answer; whereas Minn. R. 7829.1900, subp. 3, states that public reply comments “must be limited in scope to the issues raised in the initial comments” (emphasis added).”
  4. Finally, if this is intending a public comment period, then it “fails to provide notice that any “person” may file a petition to intervene pursuant to Minn. R. 7829.1900, subp. 4. The lack of clarity in the notice and its failure to comply with the clear language of Minn. R. 7829.1800 and 1900, creates ambiguity about whether the notice initiates the intervention period or not.” [I sure love how Paul words things.]

Among the many problems with the PUC’s action are:

  • Creation of confusion as to the Commission’s intention, which also is unclear in its adherence to current Minnesota statutes.
  • Potentially provides too little time and prejudices commenters who would not have access to Enbridge’s answer before filing their complaints.
  • Improperly limits the scope of responses to the complaint.
  • Fails to provide a notice for rights to intervention.
  • Continues with the PUC’s failure to follow public participation requirements in the state of Minnesota (as found by the Office of Legilative Auditors earlier this year).
What should be done?

Honor the Earth requests that the PUC “withdraw the Notice and
instead follow the process contained in the regulations
.” I’d agree this is what we should expect from the PUC:

  1. Make a preliminary jurisdictional and reasonable-grounds decision.
  2. Issue an Order finding the Complaint within its jurisdiction and that the Complaint states reasonable grounds.
  3. Serve this order and the Complaint on Enbridge and inform it of its right to file an answer within 20 days.
  4. Provide a public notice of a 30-day initial public comment period and a 10-day public comment reply period on the appropriate procedures to be followed.
  5. Provide a public notice of the intervention period.
  6. Issue an order identifying the appropriate hearing procedure for the Complaint.

Paul’s closing paragraph ends with an appropriate notice to the PUC:

The public has a right to expect that the Commission will follow its own procedural rules and be clear about public participation rights.

Amen to that.