Montana Alberta Tie Ltd. and AltaLink Management Ltd.

Transcription

1 Decision Time Extensions for New Transmission Line 941L, Alteration to Transmission Line 940L, Alteration to Transmission Line 923L, and New MATL 120S Substation June 28, 2010

2 ALBERTA UTILITIES COMMISSION Decision : and Montana Alberta Tie Ltd. Time Extensions for New Transmission Line 941L, Alteration to Transmission Line 940L, Alteration to Transmission Line 923L, and New MATL120S Substation Application Nos and Proceeding ID. 535 June 28, 2010 Published by Alberta Utilities Commission Fifth Avenue Place, 4th Floor, Street SW Calgary, Alberta T2P 3L8 Telephone: (403) Fax: (403) Web site:

3 ALBERTA UTILITIES COMMISSION Calgary Alberta MONTANA ALBERTA TIE LTD. AND ALTALINK MANAGEMENT LTD. TIME EXTENSIONS FOR NEW TRANSMISSION LINE 941L, Decision ALTERATION TO TRANSMISSION LINE 940L, Application Nos ALTERATION TO TRANSMISSION LINE 923L, and AND NEW MATL 120S SUBSTATION Proceeding ID INTRODUCTION 1. On August 12, 2008, the Alberta Energy and Utilities Board (EUB) issued to Montana Alberta Tie Ltd. (MATL) Permit and Licence No. U (MATL P&L) for approval to construct a new 230-kV transmission line designated as 941L. The EUB also issued to AltaLink Management Ltd. (AltaLink), Permit and Licence No. U for approval to alter 240-kV transmission line 923L and redesignate a portion as 940L, and Permit and Licence No. U for approval to alter 240-kV transmission line 923L. The EUB also issued Permit and Licence No. U jointly to MATL and AltaLink for approval to construct a substation designated as MATL 120S substation (Substation). Collectively, these permits and licences are referred to as the Permits and Licences (P&Ls). 2. On March 8, 2010, MATL filed Application No with the Alberta Utilities Commission (AUC or Commission), successor to the EUB, requesting an extension of time to complete the construction of the transmission line 941L and its portion of the Substation. 3. On March 18, 2010, AltaLink filed Application No with the Commission requesting an extension of time to complete the alteration of transmission line 923L and 940L, and construction of its portion of the Substation. 4. MATL and AltaLink requested an extension of time from June 30, 2010, to December 31, MATL submitted that Decision (230-kV International Merchant Power Line, Lethbridge Alberta to Great Falls Montana, issued January 21, 2008) was subject to a legal review in the Alberta Court of Appeal, and subsequently the Supreme Court of Canada. MATL noted that the Alberta Court of Appeal denied the appeal on May 5, 2009, and an application for leave to appeal the decision of the Alberta Court of Appeal to the Supreme Court of Canada was dismissed on October 22, MATL also submitted that it encountered delays in arranging long-term financing in the fall of 2008, and in October 2009 MATL secured approximately $162 million USD for the project. 1 Decision : Montana Alberta Tie Ltd.: 230-kV International Merchant Power Line, Lethbridge Alberta to Great Falls Montana (January 31, 2008) AUC Decision (June 28, 2010) 1

4 Landowner Intervention and Objection to Time Extension 7. By letter dated April 14, 2010, the Commission received an objection to the request for a time extension from My Landman Group Inc. (Landman Group) which represented approximately 20 landowners (Landowners). Landowners expressed frustration over negotiations of outstanding concerns with MATL. Landowners provided submissions respecting various commitments made in Decision , 2 claiming that MATL had failed or did not intend to honour such commitments, and accordingly submitted that MATL was in violation of various conditions attached to the MATL P&L. 8. Landowners claimed MATL had failed to adequately undertake consultations in good faith with Landowners on various issues, and refused to have discussions with Landowners to mitigate impacts of the international power line. Issues raised included a failure to consult on various impacts related to construction of the international power line. These issues included use of access roads, impacts from construction directly, such as construction during wet weather conditions, impacts on irrigation and aerial spraying, potential impacts arising from proliferation of weeds from construction equipment, and compliance with the requirement to obtain a Historical Resources Act Clearance. Landowners alleged a failure to consult on impacts related to operation of the international power line (such as impacts on Electro-Magnetic Fields (EMFs), Global Positioning Systems (GPS), and interference with radio and television), and impacts on the environment such as wildlife. Landowners also alleged a failure to consult or address commitments related to reclamation and decommissioning of the international power line Landowners claimed that they did not have any indication where the power poles will be placed on their lands, nor had they been informed or involved in any discussions as to how their pumping stations and access to water would be impacted. 10. Landman Group also noted that it represented the Warner West Water Co-op (Warner Water Co-op) and that MATL did not know where the water line is located, nor did MATL have information respecting the potential impacts on the Warner Water Co-op s water lines. 11. Landowners also claimed that MATL s proposed agreement was in violation of the MATL P&L, and provided submissions on several provisions of the MATL agreement, including access, liability, tree trimming, and landowner compensation. 12. Landowners alleged that MATL has advised Landowners that if they did not sign their proposed agreements, then MATL would go directly to the Surface Rights Board, and that the Surface Rights Board would be powerless to discuss the Landowners issues and/or to mitigate any adverse effects. Landowners believed that the Commission should discourage such behaviour. Landowners submitted that the EUB stated that it would monitor the situation and Landowner letter to AUC, dated April 14, 2010, at page 11, referencing a summary of conditions set out at page 60 of Decision Landowners provided their April 14, 2010, comments under the following categories: Consultations, Impacts on GPS Systems, Irrigation, Arial Spraying, Environmental Protection Plan, Poles, Birds, Access Roads, Weeds, Wet Conditions, Reclamation and Decommissioning, Construction and Operation of the international power line, Safety Training, Electro Magnetic Fields (EMFs), Radio and TV Interference, Mitigation and Compensation. My Landman Group Inc. - Letter to the Commission, dated May April 14, 2010, at page AUC Decision (June 28, 2010)

5 ensure that MATL acted in good faith and mitigated the effects of the international power line on landowners Landowners requested that the Commission either rescind the P&Ls, or alternatively take steps to ensure that MATL abided by the commitments made and conditions of the MATL P&L. Landowners asked that the Commission investigate Landowners concerns to determine whether MATL was in compliance with the commitments and conditions of the P&Ls, and to take enforcement actions if Landowners claims were found to be valid. 14. On April 21, 2010, the Commission received a letter from Mr. Scott C. Stenbeck, counsel on behalf of the Landowners group, providing further supplemental comments in objection to the requested time extension. Commission Process Letter Requesting Submissions on Potential Direct and Adverse Impacts from Time Extension Application 15. On April 28, 2010 the Commission issued a process letter, confirming receipt of the April 14 and 21, 2010, correspondence on behalf of the Landowners, and asked the Landman Group to provide submissions respecting how the requested time extension might directly and adversely affect the Landowners by May 7, Landowner Submissions 16. By letter dated May 5, 2010, the Commission received a response from counsel for the Landowners. Counsel indicated that the Landman Group had interviewed the Landowners, and prepared a comprehensive letter which encapsulated the Landowners concerns. 5 Counsel also included a letter from Warner Water Co-op for the information of the Commission. 17. The Landowners noted that the time extension requested extending the expiry date for one and a half years from June 30, 2010, to December 21, The Landman Group letter set out the following as part of its introduction: 6 The obvious direct and adverse impact of a license extension is that the International Power Line would proceed and all of the adverse impacts described in our previous letter would continue to exist. If the AUC denies the extension application, all of those impacts will disappear. 18. In response to the Commission s request for potential direct and adverse impacts resulting from the time extension, landowners reiterated many of their submissions, noting again that the international power line would displace irrigation equipment, pumping stations, and some electric power distribution lines, and also repeated its comments that landowners did not know where the lines or poles would be located. 5 6 Landowners May 5, 2010, submissions included the following categories: Effects on Irrigation Infrastructure, subdivision plans, Warner Water Co-op, Adverse Effect Quantification, Compensation for Landowner Time and Expense, and Representation Costs. My Landman Group Inc. - Letter to the Commission, dated May 5, 2010, at page 1. AUC Decision (June 28, 2010) 3

6 19. Landowners submitted that that if the AUC allows the requested time extension, then Landowners would be adversely affected by having to incur costs to participate in proceedings before the Surface Rights Board, which may require expert witnesses and legal representation over a number of years. Landowners submitted that many of the adverse effects of the international power line are intangible and very difficult to prove, and that if the request time extension is granted, then Landowners would be placed in a situation where they would not only be required to identify the adverse effect but also be required to quantify it. Landowners also commented that MATL refused to pay landowners compensation for such costs, time, and expense of representation. Landowners described the MATL P&L as effectively a long-term option which restricts and adversely affects the ability of some landowners to develop their lands as they would like, such as plans for subdividing. 20. Landowners argued that that issues with the landowners and the Warner Water Co-op should be resolved prior to MATL proceeding with landowner Right of Entry applications with the Surface Rights Board. Landowners also claimed that due to Surface Rights Board practices, landowners would be left with no recourse unless the MATL P&L is terminated or further restrictions are placed on the MATL P&L itself. 21. At page 10 of its May 5, 2010, letter, the Landman Group provided a summary of the Landowners objections relating to the requested time extension: 7 The MATL licence has conditions and commitments that MATL is not abiding by. The EUB specifically directed MATL to negotiate and mitigate the effects that their IPL would have on the affected landowners. They have not done so, indeed they have not even made an attempt to do so in many cases. If the AUC ignores these conditions and commitments, they will be derelict in fulfilling their mandate and will be placing the landowners in harm s way. The AUC is the only body with the jurisdictional ability to enforce compliance. In fact, this enforcement is the only avenue available to the landowners to ensure that the adverse effects of the line can be alleviated. The Surface Rights Board does not have the ability to properly compensate landowners for the intangible adverse effects that the NEB and the EUB have already recognized will occur as a result of the MATL line. Natural Justice and the public interest requires each regulatory body to fulfill their mandate so that the landowner is made whole and not made to suffer excessively as a result of the Energy Industry s use of his/her lands. We therefore request that the AUC: 1) Hold hearing where we can provide evidence of MATL s non-compliance with conditions and commitments, or 2) Disallow the extension request, or at the very least, 3) Take steps to ensure that MATL is not allowed to apply to the Surface Rights Board for Rights of Entry until they are in compliance with the IPL s conditions and commitment requirements. 22. The Commission also received letters in support of the request for a time extension from the Alberta Electric System Operator dated May 18, 2010, and from NaturEner dated May 6, 2010 and May 18, My Landman Group Inc. - Letter to the Commission, dated May 5, 2010, at page AUC Decision (June 28, 2010)

7 2 FINDINGS 23. The Commission notes the specific nature of this application is a request for a time extension made pursuant to section 19 of the Hydro and Electric Energy Act. Section 19 specifically contemplates that the Commission may stipulate a later date for completing a project. 24. Under section 9 of the Alberta Utilities Commission Act, the Commission may make a decision on an application without giving notice and without holding a hearing unless it appears to the Commission that its decision on an application may directly and adversely affect the rights of that person. The person seeking standing must demonstrate that he or she has rights that may be directly and adversely affected by the decision. This is a two-part test. The person must show that he or she is entitled to exercise a legally recognized interest and that the decision of the Commission may directly and adversely affect that interest. 25. The Commission finds that the Landowners have rights as the owners of land and may reside near the proposed project. The Commission finds that the Landowners meet the first part of the test for standing. 26. However, with regards to the potential direct and adverse impacts of the application for an extension of time, the Commission finds that the Landowners have not met the second part of the standing test for the following reasons. 27. The Commission is of the view the Landowners objection raises issues which relate to the EUB s decision granting the MATL P&L and the P&Ls rather than with extending the time for construction of the transmission lines and the Substation. The Landowners observation that if the MATL P&L and the P&Ls were not to be extended, then it would no longer have any effect, is not a potential direct and adverse impact of this application for a time extension. 28. In addition, the Landowners belief that MATL has failed or does not intend to honour various commitments made in Decision , and that MATL is not abiding by the terms, conditions, and commitments of the MATL P&L is not a potential direct and adverse impact on landowner rights in relation to this application for a time extension. The enforcement of conditions of the MATL P&L and the P&Ls is a matter separate and apart from this application. Furthermore, the Commission finds that the Landowners have not raised any new or increased potential impacts arising from an extension of time of the MATL P&L and the P&Ls. 29. The Commission further finds that recourse by MATL to the Surface Rights Board cannot be considered as potential direct and adverse impact in relation to the applications at hand. Therefore, the Commission finds that the Landowners have not demonstrated that a decision of the Commission on the applications has the potential to directly and adversely affect their rights. As a result, the Commission has dismissed the Landowners objection. AUC Decision (June 28, 2010) 5

8 30. The Commission has considered the applications and finds the reasons MATL and AltaLink provided for a time extension to be reasonable under the circumstances. First, Decision was issued in January 2008, and thereafter was subject to review before the Alberta Court of Appeal, and leave to appeal was sought before the Supreme Court of Canada Further, no new, increased or incremental impacts have been identified which would reasonably result from the granting the requested extension of time for construction of the proposed transmission line and substation, and which can be reasonably considered separate and apart from the EUB s original decision granting the MATL P&L and the P&Ls. For these reasons, the Commission grants the request for a time extension to complete the construction of the transmission line 941L, alterations to transmission line 940L, alterations to transmission line 923L, and construction of MATL 120S Substation. 3 DECISION 32. Pursuant to section 19 of the Hydro and Electric Energy Act, the Commission approves Application Nos and , and pursuant to sections 14 and 15 of the Hydro and Electric Energy Act grants the requested time extension to respectively as set out in the Appendices (the Appendices will be distributed separately). Dated June 28, ALBERTA UTILITIES COMMISSION (original signed by) Thomas McGee Commissioner 8 Leave to appeal Sincennes v. Alberta (Energy and Utilities Board) (2009 ABCA 167 [2009] A.J. No. 477) to the Supreme Court of Canada was denied on October 22, 2009 (Roy Swanson Farms Ltd. v. Alberta (Energy and Utilities Board) [2009] S.C.C.A. No. 300). 6 AUC Decision (June 28, 2010)