Friday, July 1, 2011


Who Changed The Rules?
On June 23, 2011 Buckwheat Valley Citizens Coalition (BVCC) published "Part One - Who Changed The Rules?" BVCC had received the following question from citizen [T.G.] inquiring as to: "How, why, and where was a "renewable energy percentage of transmission mandate" removed from a previously approved Certificate Of Need (CON)? BVCC thought this question was important and initiated an investigation. As events unraveled BVCC discovered that the Public Utility Commission (PUC) of Minnesota did in deed allow for what is called a "Motion For Reconsideration" (whereby an electric utility company could petition the PUC to change the rules of the PUC's previously approved transmission line project) after the PUC had issued its "Final Decision" on that application. Why is this important? Because this means (in its most common denominator) that what the PUC had issued in its "Final Decision" (rules for the electric utility's application approval) could be changed later (with or without a Public hearing proceeding).

The question BVCC then had was: Is this same process for "Changing The Rules" also within the regulatory domain of the Public Service Commission (PSC) of Wisconsin? And, if so, what electric utility has used this process to "Change The Rules?" In order to answer these questions we asked legal expert Attorney Frank Jablonski (from the Progressive Law Group, LLC, of Wisconsin) for guidance. The following are question and response quotes:

----------Beginning Of Questions & Answers---------

1. QUESTION ONE: Is there a procedural regulatory process within the PSC of Wisconsin, whereby a public utility applicant (after the date of its applications approval) could procedurally ask the PSC to modify the terms and conditions of the PSC's "Final Approval Decision," by a process known as "Reconsideration" (or any other term to that affect)?    ANSWER: YES.

2. QUESTION TWO: If such a process exists within the procedural rules of the PSC, please provide the specific PSC citation and rules for this procedure?  ANSWER: Statutes:  Wis. Stat. § 196.39 and Wis. Stat. § 227.49.  

196.39 Change, amendment and rescission of orders; reopening cases. (1) The commission at any time, upon notice to the public utility and after opportunity to be heard, may rescind, alter or amend any order fixing rates, tolls, charges or schedules, or any other order made by the commission, and may reopen any case following the issuance of an order in the case, for any reason.
(2) An interested party may request the reopening of a case under s. 227.49.
(3) Any order rescinding, altering, amending or reopening a prior order shall have the same effect as an original order.
(4) Within 30 days after service of an order, the commission may correct an error or omission in the order related to transcription, typing or calculation without hearing if the correction does not alter the intended effect of the order.
(5) This section does not apply to an order issued under s. 196.371.
History: 1983

227.49 Petitions for rehearing in contested cases.
(1) A petition for rehearing shall not be a prerequisite for appeal or review. Any person aggrieved by a final order may, within 20 days after service of the order, file a written petition for rehearing which shall specify in detail the grounds for the relief sought and supporting authorities. An agency may order a rehearing on its own motion within 20 days after service of a final order. This subsection does not apply to s. 17.025 (3) (e). No agency is required to conduct more than one rehearing based on a petition for rehearing filed under this subsection in any contested case.
(2) The filing of a petition for rehearing shall not suspend or delay the effective date of the order, and the order shall take effect on the date fixed by the agency and shall continue in effect unless the petition is granted or until the order is superseded, modified, or set aside as provided by law.
(3) Rehearing will be granted only on the basis of:
(a) Some material error of law.
(b) Some material error of fact.
(c) The discovery of new evidence sufficiently strong to reverse or modify the order, and which could not have been previously discovered by due diligence.
(4) Copies of petitions for rehearing shall be served on all parties of record. Parties may file replies to the petition.
(5) The agency may order a rehearing or enter an order with reference to the petition without a hearing, and shall dispose of the petition within 30 days after it is filed. If the agency does not enter an order disposing of the petition within the 30−day period, the petition shall be deemed to have been denied as of the expiration of the 30−day period.
(6) Upon granting a rehearing, the agency shall set the matter for further proceedings as soon as practicable. Proceedings upon rehearing shall conform as nearly may be to the proceedings in an original hearing except as the agency may otherwise direct. If in the agency’s judgment, after such rehearing it appears that the original decision, order or determination is in any respect unlawful or unreasonable, the agency may reverse, change, modify or suspend the same accordingly. Any decision, order or determination made after such rehearing reversing, changing, modifying or suspending the original determination shall have the same force and effect as an original decision, order or determination.
History: 1975 c. 94 s. 3; 1975 c. 414; 1977 c. 139; 1979 c. 208; 1985 a. 182 s. 33t; Stats. 1985 s. 227.49. This section does not require service of a petition for rehearing within 20 days of DOR v. Hogan, 198 Wis. 2d 792, 542 N.W.2d 148 (Ct. App. 1995), 95−0438. A petition is filed when it is physically delivered to and received by the relevant authority. Currier v. Wisconsin Department of Revenue, 2006 WI App 12, 288 Wis. 2d 693, 709 N.W.2d 520, 05−0292.

Rules: PSC 2.28 Wis. Admin. Code

PSC 2.28 Reopening. If the commission does not decide a request made under s. 196.39, Stats., within 30 days after the filing of the request, the request shall be deemed denied.
History: CR 00−187: cr. Register June 2002 No. 558, eff. 7−1−02.
 3. QUESTION THREE: (1) Do you know if the American Transmission Company (ATC) has filed for any such "Change" request under Wis. Stat. § 196.39 and Wis. Stat. § 227.49, and if so, what was the nature and result of such request? ANSWER: Yes. In the Decision and Order, Public Service Commission of Wisconsin Docket 05-CE-113 October 30 2001  (p. 58), the PSCW approved of $165,721,000 for a transmission project. Less than two years and two months later, after ATC said it needed more money, the same agency approved $420,308,000 as the reasonable cost of project. (Public Service Commission of Wisconsin, Docket 05-CE-113 Order Modifying Final Order, December 19, 2003, p. 3). 
----------End Of Questions & Answers----------

Well citizens, you have read the legal stuff, now lets talk about what BVCC has concluded from all of this.
1. There is no certainty in a PSC final decision.
2. Legal maneuvering behind the General Public View is allowable by Wisconsin Statue and PSC proceedings.
3. ATC requested a "Petition For Rehearing" (Docket 05-CE-113) and was granted their request to increase the cost of the Arrowhead-Weston Transmission Line by an additional $254,587,000.00 (over 254 Million dollars above the projects approved application cost)!
4. It is now a certainty that "Nothing Is Certain" and that any portion of a utility application can be modified later. When a project promoter tells Public citizens what the project will cost, what it will deliver, and how it will be constructed, the public needs to be aware that once in the door, all bets are off. What you see, may not be what you get. Can the Public trust Wisconsin's government, its regulatory agencies or special interest project promoters? Very good question?
5. Recently, BVCC has learned of other concerning issues regarding the Public Service Commission (PSC) of Wisconsin. According to our sources, one of the Commissioners of the PSC (in the above cited ATC Petition For Rehearing) was later named to a high level executive position within ATC. Another PSC Commissioner (who granted the ATC Petition For Rehearing for the Arrowhead-Weston Transmission Line project cost increase)  has since been left the PSC and has been promoted to a high level appointment in the Obama Administration's U.S. Department of Energy's (DOE) electric transmission over-site and grid planning sector. The current PSC Chairman served in the Wisconsin Legislature during the time ATC was granted its authority to act as an extension of the State of Wisconsin (for the purpose of eminent domain seizure of citizen lands required for ATC's electric utility corridor construction). Another current PSC Commissioner is on the Board Of Directors of the Organization of Midwest Independent System Operator (MISO) States (the bulk electric distributor network grids in the Continental U.S. - Midwest region, and in Canada. BVCC is not alleging that an impropriety has occurred within the PSC. Rather, BVCC is suggesting (given the extremely sensitive nature of the Public Service Commissions authority - and sworn commitment to protecting the Public interest) that any hint of impropriety should be strictly avoided. And, when personal gain (and career incentives) enter the broader picture, suspicions run high! The simple way to pose the intended question here is: How can any PSC Commissioner make an unbiased, neutral, and fair decision (in any given Public Utility Case) if they have any outside professional or financial interests (or bias based on history) that could influence their decision? There is no wiggle room in this quandary! Especially since, only three individuals are appointed to sit on the entire Public Service Commission (PSC) bench, and their decisions are "Final," subject to revision or rescission!
6. Closing Note: Remember the end summary of the U.S. financial sectors run amok documentary "Inside Job" (highly recommended and award winning) by the filmmaker: Charles Ferguson (2010)? Stay tuned for "Part Three," because this BVCC investigation is not over. BVCC has asked the Public Service Commission of Wisconsin to respond to the same set of BVCC questions (listed above). BVCC is patiently waiting for their reply. There are still some rocks to turn and look-see.  Keep the lights on!
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