BEFORE THE PUBLIC UTILITIES
COMMISSION
OF THE STATE OF SOUTH DAKOTA
_____________________________________________________________________________
EL 19-003
IN THE
MATTER OF THE
APPLICATION
BY CROWN
RIDGE WIND,
LLC FOR A INTERVENORS’
PERMIT OF A
WIND ENERGY POST-HEARING
BRIEF
FACILITY IN
GRANT AND
CODINGTON
COUNTIES
STATEMENT OF
THE CASE AND INTRODUCTION
- On
January 30, 2019, the South Dakota Public Utilities Commission (Commission)
received an Application for a Facility Permit for a wind energy facility
(Application) from Crowned Ridge Wind, LLC (Crowned Ridge or Applicant) to
construct a wind energy conversion facility to be located in Grant County and
Codington County, South Dakota (Project or proposed project). The Project would
be situated on approximately 53,186-acres in the townships of Waverly,
Rauville, Leola, Germantown, Troy, Stockholm, Twin Brooks, and Mazeppa, South
Dakota. The total installed capacity of the Project is claimed not exceed 300
megawatts (MW) of nameplate capacity. The proposed Project includes up to 130
wind turbine generators, access roads to turbines and associated facilities,
underground 34.5-kilovolt (kV) electrical collector lines, underground fiber
optic cable, a 34.5-kV to 345-kV collection substation, one permanent
meteorological tower, and an operations and maintenance facility. On January
31, 2019, the Commission electronically transmitted notice of the filing and
the intervention deadline of April 1, 2019, to interested persons and entities
on the Commission’s PUC Weekly Filings electronic listserv. On February 6,
2019, the Commission issued a Notice of Application; Order for and Notice of
Public Input Hearing; Notice of Opportunity to Apply for Party Status. On
February 22, 2019, the Commission issued an Order Assessing Filing Fee; Order
Authorizing Executive Director to Enter into a Consulting Contracts; Order
Granting Party Status. On March 20, 2019, a public input hearing was held as
scheduled. On March 21, 2019, the Commission issued an Order Granting Party
Status. On March 25, 2019, Patrick Lynch filed an Application for Party Status.
On March 26, 2019, Commission staff filed a Motion for Procedural Schedule. On
March 27, 2019, Crowned Ridge filed its Responses to the Motion for Procedural
Schedule. On March 28, 2019, lntervenors filed a Response to Crowned Ridge’s
Response to the Motion for Procedural Schedule. On April 5, 2019, the
Commission issued an Order Granting Party Status; Order Establishing Procedural
Schedule. On April 25, 2019, lntervenors filed a Motion to Deny and Dismiss. On
April 30, 2019, the Commission issued an Order For and Notice of Motion Hearing
on Less Than 10 Days’ Notice. On April 30, 2019, Commission staff and Crowned
Ridge each filed a Response to Motion to Deny and Dismiss. On May 6, 2019,
lntervenors filed a Reply Brief in Support of Motion to Deny and Dismiss. On
May 10, 2019, the Commission issued an Order Denying Motion to Deny and
Dismiss; Order to Amend Application. On May 10, 2019, the Commission also
issued an Order for and Notice of Evidentiary Hearing. On May 17, 2019,
Intervenors filed a Second Motion to Deny and Dismiss. On May 23, 2019,
Commission staff filed a Request for Exception to Procedural Schedule and
Crowned Ridge filed its Response to lntervenors Second Motion to Deny and
Dismiss and, as a part of its response, Crowned Ridge requested a Motion to
Strike. On May 28, 2019, Intervenors filed a Reply Brief and Motion to Take
Judicial Notice. On June 12, 2019, the Commission issued an Order Granting
Request for Exception to Procedural Schedule; Order Denying Motion to Take
Judicial Notice; Order Denying Motion to Strike. The Commission has not ruled on the Second Motion
to Deny and Dismiss. The Commission has
jurisdiction over this matter pursuant to SDCL Chapters 1-26 and 49- 41 B, and
ARSD Chapter 20: 10:22. The evidentiary
hearing was held, beginning on June 11, 2019, and ending on June 12, 2019, with
one Staff witness heard prior to the scheduled evidentiary hearing. At the conclusion of the evidentiary hearing,
a briefing schedule and decision date was set by the Commission. Intervenors,
through undersigned counsel, submit this Post-Hearing Brief. Applicant is seeking a permit from the
Commission to build a wind farm in Grant and Codington Counties South Dakota.
As the permit applicant, Applicant shoulders the burden of proof to establish
its proposed project satisfies the provisions of SDCL 49-41B-22. Intervenors do not have the burden of proof
to show the proposed project does not satisfy SDCL 49-41B-22. If there remains a question as to whether the
proposed project complies with SDCL 49-4 lB-22, the permit application must be
denied. As shown below, Applicant has not satisfied its burden. Therefore,
Intervenors respectfully request the Commission deny Applicant’s permit
Application. Citations to facts
contained in the record are included in this Post-Hearing Brief and in the
Intervenors’ Proposed Findings of Fact and Conclusions of Law which are
incorporated into this Brief.
ARGUMENT
2.
The Legislature intended for an extensive and complete review of a wind
farm permit application by the Commission.
The legislature would not have done so if it did not expect its
statutory requirements to be a high bar.
In this proceeding, as of the conclusion of the evidentiary hearing, the
Application is still, at best, materially incomplete. It is also accurate to
say the Application at completion of the evidentiary hearing is unavailable as
an understandable proposed project. See
for example the findings set forth in Intervenors’ Proposed Findings of Fact
and Conclusions of Law on the issue of due process.
3.
Intervenors’ Proposed Findings of Fact and Conclusions of Law are filed
with this Brief as Exhibit A and are incorporated into this Post-Hearing Brief
by reference. The insufficiency of
Applicant’s evidence and facts, the unaddressed relevant legal issues in this
proceeding, as well as the failure of the Applicant to satisfy legal
requirements following applicable siting law and rules under the mandate of
SDCL 49-41B-22(1) are presented in detail as findings and conclusions in
Exhibit A.
4. Applicant’s statutory burden of proof
under SDCL 49-41B-22 has not been met in this proceeding. Additionally, ARSD 20:10:01:15.01 is one of
the Commission’s Rules of Practice, and it also applies to this matter. The rule requires: In any contested case
proceeding, the complainant, counterclaimant, applicant, or petitioner has the
burden of going forward with presentation of evidence unless otherwise ordered
by the commission. The complainant,
counterclaimant, applicant, or petitioner has the burden of proof as to factual
allegations which form the basis of the complaint, counterclaim, application,
or petition. ARSD 20:10:01:15.01
Applicant’s evidence supporting its regulatory compliance obligations
are matters within the possession of the Applicant. The burden to produce evidence is on the
Applicant. Davis v. State, 2011 S.D. 51,
804 N.W.2d 618, 628 (S.D. 2011); Eite v. Rapid City Area School Dist. 51-4, 739
N.W.2d 264 (S.D. 2007); Meacham v. Knolls Atomic Power Lab., 554 U.S. 84
(2008); Dubner v City and County of San Francisco, 266 F3d 959, 965 (9th Cir
2001) This burden remains upon Applicant
regarding all wind energy siting statutes and concerning all wind energy siting
rules throughout every stage of the proceeding.
Gordon v. St. Mary’s Healthcare Ctr., 617 N.W.2d 151 The facts and issues regarding the denial of
due process of the law raised by Intervenors also reflect Applicant’s failure
to meet its statutory and administrative burden of proof in this
proceeding. Wind farm siting laws and
the related administrative rules have disturbed Applicant’s efforts to obtain a
permit. The proposed Application, at the
completion of the evidentiary hearing, does not meet Applicant’s burden of
proof under which this Commission might have approved a permit — even with
proposed conditions. In this matter the
Applicant and Staff submitted proposed permit conditions. As the record reflects, Intervenors were not
invited to, and did not participate in, the writing or negotiation surrounding
the creation of the proposed conditions.
Under these circumstances the Intervenors do not accept the terms of the
proposed conditions. Applicant
must prove to the Commission compliance with all the elements of South Dakota’s
siting statutes and each of the applicable siting rules by a greater convincing
force of the evidence. Applicant’s
burden of proof is that the “proposed facility will comply with all applicable
laws and rules.” That’s not a maybe.
That’s not a might. The Applicant is not
allowed to get kind of close to complying with applicable laws and rules. An applicant must comply with all applicable
laws and rules. Applicant has not done
this.
5. In this
proceeding are the Applicant’s requested 45 db(A) and 50 db(A) sound levels for the proposed project
standards which the Commission should approve?
No. Are Applicant’s requested 45 db(A) and 50 db(A) sound levels
supported by the testimony and writings of Staff witness Hessler and supported
by the testimony and writings of Applicant’s principle health witness Ollson?
No. Applicant must prove to the
Commission compliance with all the elements of South Dakota’s siting statutes
and each of the applicable siting rules by a greater convincing force of the
evidence. Applicant has failed to meet
that burden on the issue of health and welfare.
SDCL 49-41B-22(3) Staff witness
Hessler wrote in a 2011 professional article that 40 db(A) is recommended. Staff witness Hessler testified in a prior
2018 South Dakota PUC hearing that 40 db(A) should be the design goal. Staff Witness Hessler advised the Minnesota
Public Service Commission in a 2011 report that any new project should maintain
a mean sound level of 40
db(A) or less. Staff witness Hessler advised the Wisconsin Public
Service Commission in a 2012 report that a 39.5 db(A) or less should be used for all
non-participating residences. Staff witness Hessler testified in the current
proceeding that for many years he recommended as the ideal performance level of
40 db(A). Staff witness Hessler testified also in the
present preceding that he recommended 40 db(A) as an ideal design goal. Staff witness Hessler acknowledged as his
professional opinion that a 40
db(A) for every non participant was recommended. Staff witness Hessler reported in his
pre-filed testimony in this proceeding that anytime sound levels are higher
than about 40 db(A)
he anticipates complaints with the number of complaints and the severity of
complaints increasing exponentially as sound levels approach 50
db(A).
Staff witness Hessler told the Commission that 40 db(A) sound level maximums would be better for
the public than 42
db(A). Staff witness Hessler
testified that 40 db(A) would be acceptable to the welfare of the
public as a permit condition. Staff
witness Hessler testified in this proceeding that he agreed with a professional
article found at Exhibit I – 8 reporting that the level of 40 db(A) is a design
goal intended to protect the public.
Staff witness Hessler also agreed with a 2017 professional article at
Exhibit I-4 indicating that wind turbine farms designed to a level of 40 db(A)
or
lower for non-participating receptors
have an acceptable community response.
Staff witness Hessler acknowledged that a report he gave to the
Wisconsin Public Service Commission recommended a 40 db(A) level for non-participating
residences. Applicant’s principle health
Witness Christopher Ollson agreed that a 2011 World Health Organization noise
guideline of 40 db(A)
is a health-based limit value. Applicant
witness Ollson acknowledged he wrote in a 2014 professional article
recommending that preference should be given to sound emissions of
approximately 40 db(A)
for non-participating receptors and that this level was the same as the World
Health Organization night noise guideline. Applicant’s witness Ollson wrote in
a 2014 presentation that noise from wind turbines can be annoying to some and
associated with sleep disturbance especially when found at levels greater than 40 db(A). Applicant’s witness Ollson wrote in a 2014
presentation that preference should be given to sound emissions of 40 db(A) or less for
non-participating individuals. Ollson further testified that the limit of 40 db(A) or less for
non-participating was the same guideline as the World Health Organization
guideline. Applicant’s witness Ollson
admitted that he had previously testified in a 2014 Canadian wind farm
proceeding that 40 db(A)
was reasonable and sufficient to protect against human effects. Ollson also testified he had recommended in a
prior application proceeding that best practices include a preference for sound
emissions of 40 db(A)
or less for non-participating receptors.
In his testimony in this proceeding Applicant witness Ollson
acknowledged that he expressed a preference to be given to sound dimensions of 40 db(A) or less for
non-participating receptors in a 2014 professional article he had written. When asked in this proceeding, Ollson stated
that he had not changed any of his writings or his opinion on the opinion
recommending sound emissions of 40 db(A) or less.
Intervenor’s Proposed Findings of Fact and Conclusions of Law cite to
and provide reference to the record on the above statements for each of the two
witnesses. The preceding is substantial
evidence, by Applicant and Staff witnesses, against approving Applicant’s
requested sound level standards in this proceeding. Considering this evidence, Applicant has not
presented its case for sound standards with a greater convincing force of the
evidence. The Commission cannot and
should not approve the Applicant’s requested sound standards for the proposed
project.
- When one considers the essential
information needed to obtain permit approval under wind energy siting law, one
appreciates the law’s purpose in requiring that an applicant place before all
interested parties a competent and full disclosure as well as a public
explanation of how the proposed project complies with applicable siting law and
rules and how the project would affect the health, safety and welfare of
inhabitants. Applicant has not met its
burden of proof under the administrative rules and under wind energy siting
statutes. By way of illustration,
Applicant states that it may agree to move 7 turbines because of the opinion of
Staff witness Hessler who recommended to the Commission that 16 turbine
locations should be moved. Staff witness Hessler testified, “The 16 units that I believe are unduly
and unnecessarily affecting non-participating residences are circled in black.
. .” (citation for the record and quotations in this
Post-Hearing Brief are found in Intervenors’ Proposed Findings of Fact and
Conclusions of law) The recommendation
Staff witness Hessler expressed to the Commission regarding the welfare of
inhabitants is not reflected in the proposed minimal acts of Applicant. Applicant suggested it may move seven of the
recommended 16 turbines. “Q.
You’re not going to move 16 of them? A. We have agreed to moving seven turbine
locations. Q. You haven’t agreed to move 16? A. That’s correct. We agreed to
move 7.” Applicant’s position is far
from a commitment to do what is recommended. And further, Applicant does not represent to
the Commission that the 7 turbine sites which it may move are to be withdrawn
sites or are to be terminated as project turbine location sites. Applicant will still maintain those 7 sites
as a ‘back up.’ None of this ‘moving of
7 turbines’ complies with the Staff witness’ recommendations. Applicant is not taking adequate action to
protect the health, safety and welfare of project inhabitants. The Applicant’s several witnesses in this
proceeding do not show any dispute or criticism regarding the recommendations
of Mr. Hessler that 16 turbines should be relocated. Applicant’s proposed action does not
adequately protect non-participators.
This effort to sway to the Commission is too little. Applicant is over-careful regarding its own
interests at the expense of the project community, the inhabitants and
non-participators. A
proposed move of a minimal number of the turbine relocations contrary to the
recommendation by Staff witness Hessler does not meet Applicant’s burden of
proof regarding the health and welfare of the inhabitants pursuant to SDCL
49-41B-22(3).
7.
The materially incomplete Application is shown by the lack of a full
avian use survey report. Applicant’s
purported avian study for the proposed project is found at Appendix E of the
Application. The study ended in November of 2017. See page 58 of Appendix
E. The avian use survey report fails to
include a significant portion of the proposed project. The northeast area of the proposed project
was not included in the report. This
unsurveyed project area consists of 15,500 acres of land and 25 proposed
turbine sites or alternate turbine sites.
Applicant’s avian survey map, Exhibit A1-E p2, reveals the failure to
survey this large northeastern area of the project. The map included with
the survey is Applicant’s document filed in support of its assertion that
Applicant completed a survey of the proposed project area. The northeastern
area of the project was acquired by the Applicant at the end of November 2017
but well over one year before the Applicant formally filed the pending
Application. Application Exhibit A1 p 88
“Cattle Ridge Wind Farm, LLC was acquired by the CRW on November 22, 2017 for
inclusion with the Project.” Applicant
did not do an avian use survey report on the northeast area of the proposed
project. The fact that the Application contains no avian use study of the
completed project area is confirmed by Applicant witness Sappington’s
testimony. “Mr. Ganje Q. I would refer you to Exhibit A1-E…” “Mr.
Ganje Q. So then no avian study report was done for that portion of the
project, was it? Sarah Sappington A. No Avian Use Survey.” The dashed lines on A1-E show the limits of
the survey area. “Q. I would ask you please to refer to A1-B page
80. And is the — referring now to page 80 of the exhibit, please. Is
page 80 the colored area, the area of interest that was studied by your
company?” Sarah Sappington “A. This was studied as of July 2017. Q. Yes.
And does that study area include the northeastern portion of the proposed
project that I referred to you in a previous question and showed you on a
previous map? A. Are you referring to that northeast portion? Q. That is
correct. A. No. This map does not have it.”
The purple area shown on A1-B does not include the northeast area of the
proposed project. And, Figure 1 of the
“study area” on page 2 of the Avian Use Survey Report is clear evidence the
Application is materially incomplete.
See Appendix E to the Application. Applicant cannot be granted a
permit by the Commission.
8.
In this proceeding the problem of denial of the Intervenors’ due process
rights is set forth with citations in the findings and conclusions found at
Exhibit A to this Brief. The lack of due
process issue is stark. The issue warrants a review in this Brief. The right to be informed of, to access, to
know and to challenge an Application is not available to Intervenors where
material information has not been timely placed on the record – even at the end
of the final evidentiary hearing.
Applicant has not implemented a fair and adequate procedure under which
Intervenors could understand the facts necessary for the Commission to reach a
decision. Applicant has not followed a
fair and adequate procedure necessary for the Commission to reach a decision on
the impacts of the proposed project.
Since the day of filing the Application, Interveners have been deprived
of adequate information from which to understand, research and challenge the
Application under its ever-evolving and materially-changed proposed project. Up
to the last day of the hearing substantial and material proposed project
changes were submitted to the Commission.
Adequate notice and due process of law do not permit an applicant in
such a complicated public siting process to change material facts and technical representations on the final day and
at the final hour of the submission of evidence. Further, the Application is still incomplete
in multiple, material respects, and should be denied by the Commission.
9.
Instances of denial of due process.
9a.) At
the close of the evidentiary hearing, Applicant filed two documents Exhibits:
A67 and A68, as so-called updated shadow flicker tables. The shadow
flicker tables list 70 nonparticipating and 61 participating receptors, which
are homes, with 4 participants listed as pending. The table is missing 56 of 59
of nonparticipators receptors in Stockholm and Waverly. Exhibit A1 page 75 And at this late date Intervenors still do
not know the participators. Applicant fails to provide information on who
is participating, who is not, and the effects on these receptors. Of the 131 receptors listed on the table, more
than half are non-participators and this table does not include the 56
non-participating receptors in the two towns inside the proposed project. This brings the total of the
non-participators inside the project boundary at 129 vs 61 participating. In the last 2 days of the
evidentiary hearing Applicant submitted exhibits A57, A67 and A68. The exhibits
are presented as updated sound and flicker modeling for the proposed project.
Except for modeling four receptors in Waverly and one in or near Stockholm,
Applicant failed to consider, model or include receptors and residences in the
towns of Stockholm and Waverly. While
the proposed project offers setbacks away from the towns of Waverly and
Stockholm, setbacks do not address the issue of the effects of sound and
flicker on the residences of Waverly and Stockholm. The Applicant’s modeling buffer zone, as well
as the proposed project site, includes the towns of Waverly and Stockholm, but
Applicant did not consider, model or include all the receptors and residences
in the two towns. The large number of
town residences within the proposed project is identified in the Application. See Application page 75 Applicant did not do complete sound and
flicker modeling for Waverly and Stockholm.
Applicant’s evidence is void of material and necessary information
concerning the consequences of sound and flicker on the residents of Stockholm
and Waverly. The
lack of relevant and material evidence makes it impossible for Intervenors to
evaluate a complete Application which covers 53,186 acres of South Dakota.
9b.)
Applicant’s astonishing last-minute presentation of Application evidence
included Exhibit A55 –Proposed Turbine
Drops and Moves. This exhibit was
presented to the Intervenors and the Commission on the first day of the
evidentiary hearing June 11th, 2019.
Revealing for the first time in
a 6 month application process several proposed turbine drops and several proposed
turbine moves. This last-minute
disclosure did not provide adequate and timely notice to Intervenors on a
substantive and material aspect of the Application. Applicant’s Exhibit A55 represents that
turbines will be ‘dropped’ from the project.
However the testimony of Applicant witness Wilhelm at the evidentiary hearing
contradicts this proposition. Mr.
Wilhelm testified during the evidentiary hearing that, 1. The turbines will not
be dropped but will actually be reserved for possible later use, and that, 2.
The relocation of the turbines that Applicant offered to move is not to be
disclosed. Applicant
provided no coordinates for the turbines to be relocated. Further, the so-called dropped turbines
proposed do not address witness Hessler’s recommended 16 turbine
relocations. The representations
of Applicant regarding the so-called dropped turbines, and Applicant’s
suggested turbines to be moved, found in Exhibit A55 are misleading at best. Turbines
identified as CRII – 127 and CRII – 129 are included among the so-called
dropped turbines. These turbines are not
turbines sites for the proposed project. These turbines sites are part of a different
wind farm project altogether. And, three
turbine sites to be ‘moved’ (CR II Alt 3, CRII 126, CRII 133) are
not a part of the proposed
project. The three turbines are a part of a different wind farm project altogether. Further, and just as material, Applicant’s
proposal found in Exhibit A55 does not
move ten of the turbines sites recommended to the Commission by Staff
witness Mr. Hessler for relocation. See
Exhibit S1a Applicant provides no
designated placement sites for the ‘moves’ it suggests it would make. The map produced by Applicant at A55 and the
accompanying proposal is an attempt by Applicant to offer something of no
relevant value to the legitimacy of the proposed Application in exchange for
approval of the proposed project by the Commission, the Intervenors and the
affected property owners. Applicant’s
proposal should be labeled a dance of dissemblance. The lack of relevant and material information
makes it impossible for Intervenors to timely evaluate a completed Application
which covers 53,186 acres of South Dakota.
9c.)
Although it is a requirement of the permit process, the Applicant did
not timely file documents needed to evaluate the Application and its impacts to
the environment and citizens. Applicant
represented from and after January 2019 that no turbines would be placed on
grasslands or wetlands. Application page
79 Applicant’s representation is not
true. On June 4, 2019 Intervenors learned through data request responses
in Exhibit A45-3 the matter of missing USFWS easements. An Applicant may only place turbines on the
upland portion of a federal wetlands easement parcel. The maps submitted by
Applicant do not adequately reflect the location of wind turbines on parcels
designated as federal wetlands parcels.
In this proceeding a reasonable person cannot determine the
location of turbines proposed to be located in the 7 wetland parcels. The lack of relevant and material information
makes it impossible for Intervenors to evaluate a completed Application for a
proposed project that covers 53,186 acres of South Dakota, without all the
required information timely provided.
9d.)
Applicant misled the parties concerning a claimed, completed Avian
Study. The Applicant provided an incomplete Avian Study in which 15,500 acres
were not included, although the written Application represents that all such
matters are good to go. And Applicant
did not provide biological studies and information concerning native grasslands
and mammals. The lack of relevant and material information makes it
impossible for Intervenors to evaluate a completed Application for a proposed
project that covers 53,186 acres of South Dakota, without all the required
information timely provided.
9e.) Intervenors’ Second Motion to Deny provides an
illustration of the Applicant’s failure to timely disclose and failure to
provide proper notice, adequate information and failure to provide Intervenors
due process. In paragraph 14 of the
Patrick Lynch affidavit in support of the motion, Applicant’s misrepresentation
to the record, to the Commission and to Intervenors is recited. Patrick Lynch
Affidavit filed 5/17/2019 The Lynch
Affidavit reveals Applicant’s failure to disclose a material fact. Until Applicant was obliged to respond to the
Second Motion, Applicant withheld the fact that it did not have legal access to
25 proposed turbine locations. In its
motion response Applicant did not deny Applicant’s lack of an easement, even
though Applicant had represented in its filings from January 2019 until the
Second Motion was filed (the end of May 2019) that it had legal access to the
25 proposed turbines. The false representation was made for 4 months of the 6
month application process allowed by law.
Applicant knew the easement did not exist. And in response to the Second Motion
Applicant further admitted there were six expired land agreements; while in a
separate disclosure in June 2019 Applicant admitted that there were seven
material land agreements necessary for the project. Without knowledge of the
location of turbines, the location of easements and collection lines it is and
was impossible for Intervenors to understand, research and timely challenge a
completed Application.
10.
Intervenors incorporate by reference into this Brief: Intervenors’ filed Brief in support of their
First Motion to Deny and Dismiss, Intervenors’ filed Reply Brief in support of
their First Motion to Deny and Dismiss, Intervenors’ filed Brief in support of
their Second Motion to Deny and Dismiss, and Intervenors’ filed Reply Brief in
support of their Second Motion to Deny and Dismiss. Intervenors also incorporate by reference
into this Brief Intervenors’ hearing Brief on Intervenors’ Motion to Strike
testimony of witness Haley.
CONCLUSION
11.
The Application does not meet the criteria required by South Dakota
Codified Laws. The construction of the project
does not meet the requirements of South Dakota Codified Law 49-41B. Applicant has not demonstrated that the
proposed facility will comply with all applicable laws and rules. Applicant has not demonstrated that the
facility will not pose a threat of serious injury to the environment nor to the
social and economic condition of inhabitants or expected inhabitants in the
siting area. Applicant has not
demonstrated that the facility will not substantially impair the health, safety
or welfare of the inhabitants.
12.
Even if reviewed in the best light (which is not the legal standard for
assuring a party due process of the law, and does not comply with Applicant’s
required burden of proof) the pending Application is murky, muddled, incomplete
and with material information unknown.
The Commission and the Intervenors should not have this many unanswered
questions, and the Applicant unfulfilled legal obligations, all at this stage
of the proceeding. Because there are so many and because of the significance of
the unanswered questions as well as an incomplete Application, the Commission
should deny the permit application.
Further, based upon the arguments described in this Post-Hearing Brief
and based upon the findings and law described in Intervenors’ Proposed Findings
of Fact and Conclusions of Law the Application should be denied. In addition, the application process in this
proceeding has denied and infringed upon Intervenors’ due process rights
including their opportunity to be heard at a meaningful time and in a
meaningful manner. Mathews v. Eldridge, 424 U.S. 319, 333 (1976). The Applicant
has failed to meet its burden of proof under SDCL 49-41B-22 and ARSD
20:10:01:15.01. The Application should
be denied.
Dated this _____ day of __________, 2019
/s/ David L Ganje
Ganje Law Offices
17220 N Boswell Blvd
Suite 130L, Sun City, AZ 85373
Web: lexenergy.net
Phone 605 385 0330
