Decision 2006-114
Request for Review and Variance of Decision 2005-031: Alberta Electric System Operator, Needs Identification Document Application, Edmonton-Calgary 500 kV Electric Transmission Facilities
December 6, 2006
ALBERTA ENERGY AND UTILITIES BOARD Decision 2006-114: Request for Review and Variance of Decision 2005-031: Alberta Electric System Operator, Needs Identification Document Application, Edmonton-Calgary 500 kV Electric Transmission Facilities
December 6, 2006
Published by Alberta Energy and Utilities Board 640 – 5 Avenue SW Calgary, Alberta T2P 3G4
Telephone: (403) 297-8311 Fax: (403) 297-7040 E-mail: [email protected] Web site: www.eub.ca
CONTENTS
1 DECISION...... 1
2 BACKGROUND ...... 2 2.1 Deregulation and the New Regulatory Process for Transmission System Upgrades .... 3 2.2 The NID Application ...... 3 2.3 The Prehearing Meeting for the NID Application ...... 4 2.4 The NID Hearing ...... 5 2.5 Decision 2005-031 ...... 6 2.5.1 Legislative Framework for Section 34 Decisions...... 6 2.5.2 Step 1: Need to Upgrade the N-S Transmission System ...... 6 2.5.3 Step 2: Was AESO’s Preferred Concept Reasonable and in the Public Interest?...... 7
3 THE REQUESTS TO REVIEW DECISION 2005-031 ...... 8 3.1 The Board’s Authority to Review Its Own Decisions ...... 8 3.2 The Review Requests...... 9
4 THE REVIEW HEARING ...... 10 4.1 Notice and Information Sessions ...... 10 4.2 Hearing Participants...... 10 4.3 The Review Hearing ...... 11 4.4 Preliminary and Interlocutory Motions...... 12 4.5 Issues...... 12
5 PRELIMINARY MATTERS...... 13 5.1 The Filing of a Transmission Facility Application by AltaLink...... 13 5.2 Lavesta’s Jurisdictional and Process Concerns...... 13 5.3 Allegation of Lack of Proper Notice...... 14 5.4 Allegation that the Board Improperly Limited the Scope of the Review Hearing...... 14 5.5 Allegation of Noncompliance with Section 28 of the Transmission Regulation...... 15 5.6 Allegation of Lack or Loss of Jurisdiction...... 16 5.7 Allegation of Bias in the Proceedings...... 16
6 THE PUBLIC INTEREST...... 17
7 WAS AESO’S METHODOLOGY FOR ITS HIGH-LEVEL COMPARISON OF CORRIDOR ALTERNATIVES REASONABLE?...... 18 7.1 Views of the Parties ...... 18 7.2 Views of the Review Panel ...... 19
8 HIGH-LEVEL ENVIRONMENTAL, LANDOWNER, AND AGRICULTURAL ISSUES ASSOCIATED WITH THE WEST CORRIDOR...... 21 8.1 Introduction...... 21 8.2 Agricultural Impacts...... 23 8.2.1 Views of the Parties ...... 23 8.2.2 Views of the Review Panel...... 26 8.3 Residential Impacts (Population Density/Future Development/Land Value)...... 28 8.3.1 Views of the Parties ...... 28 8.3.2 Views of the Review Panel...... 32
EUB Decision 2006-114 (December 6, 2006) • i
8.4 Environmental Impacts ...... 34 8.4.1 Views of the Parties ...... 34 8.4.2 Views of the Review Panel...... 37 8.5 Electrical Considerations ...... 38 8.5.1 Views of the Parties ...... 38 8.5.2 Views of the Review Panel...... 49 8.6 Visual Impacts...... 52 8.6.1 Views of the Parties ...... 52 8.6.2 Views of the Review Panel...... 53 8.7 Special Constraints...... 54 8.7.1 Views of the Parties ...... 54 8.7.2 Views of the Review Panel...... 55
9 HEALTH AND SAFETY IMPACTS ...... 56 9.1 Views of Parties ...... 56 9.2 Views of the Review Panel ...... 57
10 IMPACTS ON FIRST NATIONS...... 57 10.1 Traditional Lands ...... 57 10.2 Consultation ...... 58 10.3 Views of the Review Panel ...... 60
11 OTHER MATTERS...... 60 11.1 Did AESO Apply for and Did the Board Approve a Transportation and Utility Corridor?...... 60 11.1.1 Views of the Parties ...... 60 11.1.2 Views of the Review Panel...... 61 11.2 Transmission Losses ...... 62 11.2.1 Views of the Parties ...... 62 11.2.2 Views of the Review Panel...... 63
12 CONCLUSION...... 63
13 ORDER ...... 65
APPENDIX A MAP OF THE CORRIDORS ...... 67
APPENDIX B ACRONYMS AND ABBREVIATIONS...... 68
APPENDIX C HEARING PARTICIPANTS ...... 70
APPENDIX D EUB RULINGS ON APPREHENSION OF BIAS ...... 73
APPENDIX E EUB RULINGS ON PRELIMINARY AND INTERLOCUTORY MOTIONS...... 76
ii • EUB Decision 2006-114 (December 6, 2006)
ALBERTA ENERGY AND UTILITIES BOARD Calgary Alberta
REQUEST FOR REVIEW AND VARIANCE OF DECISION 2005-031: ALBERTA ELECTRIC SYSTEM OPERATOR, NEEDS Decision 2006-114 IDENTIFICATION DOCUMENT APPLICATION, Applications No. EDMONTON-CALGARY 500 KV ELECTRIC 1439224, 1443360, 1431899, TRANSMISSION FACILITIES 1445441, 1441569, and 1439596
1 DECISION
On April 14, 2005, the Alberta Energy and Utilities Board (EUB/Board) released EUB Decision 2005-031, approving an application (the NID application) by the Alberta Electric System Operator (AESO) to expand and enhance the existing North–South electric transmission system between Edmonton and Calgary (the N-S transmission system) within a geographic area that became known as the West Corridor. Six parties requested the EUB to review Decision 2005- 031. These parties expressed the concern that there was insufficient notice of the hearing held by the Board to consider the NID application and argued that they were denied an opportunity to provide evidence regarding the unsuitability of the West Corridor for upgrades to the N-S transmission system.
The Board found that the review applicants represented a significant number of Albertans with serious concerns regarding the approval of upgrades to the N-S transmission system within the West Corridor. The Board found that even though the notice of the initial hearing met legal requirements, it would be in the public interest to specifically consider new or previously unavailable evidence regarding the suitability of the West Corridor at a review hearing and therefore convened a review hearing in Red Deer for that purpose. At the review hearing, the Review Panel considered evidence from the review applicants and other interested parties about agricultural impacts, population density, land value and future development, environmental and recreational impacts, route diversity health and safety impacts, and impacts on First Nations.
In the NID application, AESO compared three corridors (the West, Central, and East Corridors) on the basis of agricultural, residential environmental and visual impacts, electrical considerations, and special constraints. The Review Panel re-evaluated AESO’s assessment of the West, Central, and East Corridors based upon the new evidence presented in the review hearing. The Review Panel also considered the relative impacts associated with a route located within a fourth corridor proposed by ATCO Electric called the Central/East Corridor. Appendix A is a map showing the four corridors discussed in this decision.
The Review Panel’s conclusions regarding corridor comparisons are summarized in the following table:
EUB Decision 2006-114 (December 6, 2006) • 1 Request for Review and Variance of Decision 2005-031
ATCO Central Central/East West Corridor Corridor Corridor East Corridor Alternative Alternative Alternative Alternative Agricultural Similar Similar Similar Similar impact Residential Less More Less Less impact Environmental Less Less Less More impact Electrical Similar Similar Similar Similar consideration Visual impact Least More Less Less
Special More Less More Less constraints Health and Less More Less Less safety impacts
The Review Panel found that each corridor presents a roughly similar degree of challenge for future transmission development. Specifically, the Review Panel found that the evidence presented at the review hearing did not demonstrate that the West Corridor is unsuitable for future transmission development or that any of the other corridors examined was markedly superior or inferior to it. As such, the Review Panel confirmed the finding in Decision 2005-031, that AESO’s Concept V remains the most appropriate means to address the identified need to upgrade the N-S transmission system.
The Review Panel determined that some of the issues raised at the review hearing were site or route specific and thus more appropriately addressed within AltaLink’s transmission facility application process. Those matters included reliability/route diversity issues related to transmission lines sharing a common right-of-way, electromagnetic field (EMF), and site- specific concerns raised by the First Nations.
2 BACKGROUND
As this decision relates to a review hearing, the Review Panel is including this extensive background section, including short summaries of two EUB decisions, Decision 2004-0481 and Decision 2005-031, to describe in detail the series of events that led up to the issuance of Decision 2005-031. This is to provide context for the reader. All persons making use of the short summaries are cautioned that the original text of both decisions should be consulted for all purposes relating to their interpretation. Any inconsistencies between these summaries and the decisions shall be resolved in favour of the decisions.
To assist the reader, this decision includes a glossary of acronyms and abbreviations in Appendix B.
1 Decision 2004-048: Alberta Electric System Operator, Needs Identification Document Application Edmonton- Calgary 500 kV Electric Transmission Facilities—Prehearing Meeting. 2 • EUB Decision 2006-114 (December 6, 2006) Request for Review and Variance of Decision 2005-031
2.1 Deregulation and the New Regulatory Process for Transmission System Upgrades In 1996, the Government of Alberta began to restructure Alberta’s electricity market so that the commodity price of electricity would be determined by competitive market forces, while the delivery cost, because it relates to natural monopolies, would continue to be fully regulated by the EUB. This process is generally known as deregulation. Prior to deregulation, there was a single-step process for the consideration of upgrades to Alberta’s transmission system: a utility company would file a Section 34 Needs Identification Document (NID) application with the EUB requesting approval of
• the need to upgrade the transmission system, and
• specific transmission facilities and the exact routing or location of those facilities to meet that need.
The EUB would consider both issues at once; if a hearing was necessary, both were addressed in the same hearing.
Under deregulation, the Government of Alberta introduced new legislation that changed the process for the development and regulatory consideration of transmission system upgrades. The Government of Alberta created a new agency, called the Independent System Operator (ISO), to manage Alberta’s transmission system. Currently, AESO has been appointed to be the ISO. Some of AESO’s key duties under the new legislation include
• directing the safe, reliable, and economic operation of the transmission system,
• assessing the current and future needs of market participants, and
• planning for the expansion and enhancement of the transmission system.
Pursuant to the new legislation, proposals for transmission upgrades must now undergo a two- stage approval process. The first stage begins when AESO files a Section 34 NID application with the EUB. Such an application must include information showing that there is a need for transmission upgrades and must also propose a transmission upgrade solution to address that need. The EUB may approve the Section 34 NID application, deny it, or refer it back to AESO with suggestions or directions for changes or additions.
The second stage of the process follows the EUB’s consideration of the Section 34 NID application. If the Board approves the Section 34 NID application, the AESO would assign the project to a Transmission Facility Owner (TFO), which would then file a transmission facility application pursuant to the Hydro and Electric Energy Act (HEEA) and describe the exact routing and configuration of the transmission line it intended to build and operate.
2.2 The NID Application On May 19, 2004, AESO filed the NID application with the EUB which described the need for expansions and enhancements to the N-S transmission system. That application and another Section 34 NID application filed about one month earlier2 were the first such applications filed by AESO under the new legislation.
2 NID Application 1340849, Southwest Alberta 240 kV Transmission System Development. EUB Decision 2006-114 (December 6, 2006) • 3 Request for Review and Variance of Decision 2005-031
In the NID application, AESO stated that it was necessary to reinforce the N-S transmission system to
• maintain reliable supply to load in central and southern Alberta,
• alleviate congestion on the N-S transmission path, and
• remove barriers due to lack of transmission capacity to connect future generation in the Lake Wabamun area.
AESO assessed 13 transmission concepts to alleviate transmission system constraints and improve efficiency. Each concept described two phases of development. The initial phase, which was the subject of the first hearing, was for the transmission upgrades that would be completed in the 2009-2010 period. AESO predicted that the second phase of development would be completed by 2015. AESO studied three corridor alternatives for the location of the 13 concepts: a West Corridor, a Central Corridor, and an East Corridor. Twelve of the 13 concepts studied by AESO required transmission upgrades within the West Corridor in either the first or second phase of development. The NID application described in detail AESO’s comparative analysis of the 13 options and provided its rationale for choosing its preferred option.
AESO identified Concept V as its preferred option. The first phase of Concept V proposed a single-circuit 500 kV line routed within the West Corridor; the second phase proposed the rebuilding of an existing 240 kV line to operate at 500 kV, also within the West Corridor. AESO stated that Concept V was its preferred option for the following reasons:
• Concept V provides sufficient transmission capacity to meet supply requirements and to reliably serve Calgary and the southern Alberta area until 2015.
• It allows better utilization of existing 240 kV transmission systems between Edmonton and Calgary.
• It provides significant system performance improvements, including system outage conditions and voltage recovery following contingencies.
• It provides the lowest long-term net cost to the year 2025.
• It uses only one corridor alternative and avoids natural and recreational areas and many towns.
• It provides N-S transmission expansion and enhancement to lead new generation development and load growth in the competitive energy market and to ensure reliability of Alberta’s transmission system.
2.3 The Prehearing Meeting for the NID Application The Board issued a Notice of Prehearing Meeting on May 20, 2004. The notice identified AESO’s preferred option (Concept V) and included a map showing the West Corridor where Concept V would be located. As the Board had yet to consider a Section 34 NID application under the new legislation, it was interested in hearing the views of interested parties on a number of issues, including the nature of the Board’s role in considering a Section 34 NID application and whether the Board was limited to considering AESO’s preferred option when making its decision. The Board therefore stated in the notice that it wanted interested parties to address these issues at the prehearing meeting. The notice was sent by e-mail to a list of interested parties provided by AESO. The notice was also published in the daily newspapers of Calgary,
4 • EUB Decision 2006-114 (December 6, 2006) Request for Review and Variance of Decision 2005-031
Edmonton, and Red Deer on May 25, 26, and 27, 2004, and in 24 rural weekly newspapers on May 26 and 27, 2004.
The prehearing meeting was held in Calgary on June 15, 2004, before a division of the Board consisting of M. N. McCrank, Q.C., P.Eng. (Presiding Member), B. T. McManus, Q.C. (Board Member), and G. J. DeSorcy, P.Eng. (Acting Board Member).
On June 23, 2004, the Board issued Decision 2004-048, its decision with respect to the prehearing meeting. In that decision, the Board concluded that it was not limited to considering AESO’s preferred option in its deliberations on the application. The Board concluded that the following issues would be relevant to the consideration of the application:
• the current state of the transmission system between Edmonton and Calgary,
• the need to improve and upgrade that system,
• the need for the facilities identified for that purpose in the application,
• planning criteria and performance standards,
• assessment of the comparative analysis of all concepts identified in the application, and
• consideration of “external” system development concepts, if any.
2.4 The NID Hearing The Board issued a Notice of Hearing for the NID hearing on June 23, 2004. In the notice, the Board stated that the “scope of the hearing would include consideration of a number of system development concepts within the three corridors.” The notice also stated that the Board “will not address site-specific impacts that any proposed development may have on land use or individuals except at a very high level.” A map showing all three corridors was attached to the notice, which was e-mailed directly to the NID application mailing list composed of interveners and other parties that expressed interest in the application. In addition, the notice was published in major Calgary and Edmonton daily newspapers, as well as the Red Deer Advocate, on June 28, 29, and 30, 2004. The Notice of Hearing was also published in 31 weekly rural newspapers between the end of June and the middle of July 2004.
The NID hearing commenced on December 9, 2004, in Calgary before the same division of the Board that conducted the prehearing meeting. Oral argument and reply were given by parties on January 17 and 18, 2005.
While all hearing participants agreed that there was a need to upgrade the N-S transmission system, there was considerable debate regarding the best way to address that need. Industrial Power Consumers Association of Alberta/Alberta Direct-Connect Consumer Association (IPCAA/ADC) and the City of Calgary (Calgary) questioned whether Concept V should be approved by the Board; both argued that AESO did not fully consider a 240 kV alternative.3
Calgary supported the development of AESO’s Concept XII. The first stage of Concept XII proposed a double-circuit 240 kV line along the West Corridor. The second stage proposed a second double-circuit 240 kV line along the central corridor. IPCAA/ADC initially proposed the development of a 240 kV concept of its own called IPCAA 1, but did not pursue its approval at
3 Benign Energy Canada Inc. also opposed the approval of the application, but on different grounds. EUB Decision 2006-114 (December 6, 2006) • 5 Request for Review and Variance of Decision 2005-031
the hearing. These parties urged the Board to refer the NID application back to AESO with the requirement that additional study of 240 kV options be performed. In the alternative, Calgary requested that the Board conditionally approve both Concepts V and XII for further consideration.
2.5 Decision 2005-031 2.5.1 Legislative Framework for Section 34 Decisions As this was only the second Section 34 NID application filed with the Board and the first such application to be considered by the Board after the new Transmission Regulation came into force,4 the Board included a detailed analysis of the new legislative framework for the consideration of transmission upgrades.5 The Board confirmed that consideration of Section 34 NID applications is a two-step process:
• In the first step, the Board must determine whether an expansion or enhancement of the capability of the transmission system is necessary to alleviate constraint, improve efficiency, or respond to a request for system access.
• In the second step, the Board must determine whether the transmission upgrade proposed by AESO is reasonable and in the public interest.
The Board found that when making the second step determination, it must consider the transmission upgrade alternative(s) developed by AESO on the basis of the following attributes:
• system planning and performance,
• high-level routing considerations, and
• economics.
The Board explained in detail how it would examine each of these attributes. The Board emphasized that the weighing of these attributes to determine whether a proposed upgrade would be reasonable would be dictated by the specific facts of the application.
2.5.2 Step 1: Need to Upgrade the N-S Transmission System The Board determined that upgrades to the N-S transmission system were required for the following reasons:
• No major transmission line has been added to the existing N-S transmission system for more than 20 years.
• There had been significant load and generation growth along the N-S path since the last upgrades.
• The N-S transmission system was operating at or near its capacity and without upgrades would soon experience congestion.
• Conversion of the existing Keephills-Ellerslie-Genesee (KEG) transmission lines to operate at 500 kV and the enhancement of the N-S transmission system are required to accommodate the addition of new generation.
4 The Transmission Regulation came into force on August 12, 2004, approximately 3 months after NID Application No. 1346298 was filed. The Transmission Regulation provided detailed direction to the AESO and the EUB regarding the filing and consideration of Section 34 NID Applications. 5 Decision 2005-031, Section 4, pages 16-24. 6 • EUB Decision 2006-114 (December 6, 2006) Request for Review and Variance of Decision 2005-031
• The declining efficiency of the N-S transmission system was resulting in increasing annual line losses.
• The existing N-S transmission system did not meet the new Transmission Regulation requirements for congestion levels and import/export capacity.
6 • Transmission Must Run (TMR) was required to manage voltage stability in the Calgary area due to the lack of reactive power7 support in southern Alberta and the consequential exposure to voltage instability.8
• Increased system capacity was required to ensure the continued development of a fair, open, and competitive marketplace.
The Board also noted that none of the hearing participants challenged AESO’s assertion that the N-S transmission system must be expanded and enhanced to address system constraints and to improve efficiency.
2.5.3 Step 2: Was AESO’s Preferred Concept Reasonable and in the Public Interest? Only two transmission upgrade options were proposed as reasonable by participants at the NID hearing: Concept V, which was supported by the majority of participants, and Concept XII, which was supported by Calgary. The Board’s step-2 analysis therefore consisted of a detailed comparison of the two concepts. The Board determined that Concept V was the superior of the two options from the perspectives of transmission system planning and performance, routing considerations, and economics.
2.5.3.1 Transmission System Planning and Performance With respect to transmission system planning and performance for Concept V and Concept XII, the Board found the following:
• Concept V would provide greater improvements in reliability than Concept XII.
• Concept V and Concept XII would provide similar access and support to the development of a competitive market prior to 2016. However, the Board considered it likely that Concept XII would experience congestion after 2016, inhibiting market transactions, but determined that such congestion would be unlikely to occur with Concept V. On this basis, the Board found that Concept V would be significantly superior to Concept XII over the long term.
• Concept V was superior to Concept XII in the short term and significantly superior in the long term in terms of improving system efficiency, as it would have fewer transmission system losses.
• Both Concept V and Concept XII would offer additional operational flexibility to facilitate scheduled maintenance of the N-S transmission system. However, Concept V would provide superior operational flexibility because it has higher load supply capacity and provides additional flexibility for the KEG system.
6 See Appendix B: Acronyms and Abbreviations. 7 “Reactive power” means the portion of electricity that establishes and sustains the electric and magnetic fields of alternating current equipment, usually expressed in kiloVars (kVAR) or megaVars (MVAR). 8 “Voltage instability” means a system state in which an increase in load, disturbance, or system change causes voltage to decay quickly or drift downward, and automatic and manual system controls are unable to halt the decay. EUB Decision 2006-114 (December 6, 2006) • 7 Request for Review and Variance of Decision 2005-031
• Concept V was significantly superior to Concept XII with respect to long-term proactive planning, and Concept XII would not adequately satisfy the spirit and intent of the long-term planning requirements of the legislative framework.
• Concept V was superior to Concept XII in terms of maintaining options for future growth, as it would provide more capacity to accommodate load growth and thus would be better able to react to different load growth scenarios.
2.5.3.2 Routing Impacts The Board noted that AESO’s corridor evaluation was conducted without determining a specific transmission line route and that potential impacts of a transmission line within the corridor were assessed at a high level. The Board observed that the TFO assigned to build a transmission line would be required to undertake a detailed siting and routing evaluation. The Board found Concept V to be similar to Concept XII in the short term but significantly superior in the long term. The Board found that only one new right-of-way would be required for Concept V in both the short and long term, while three new rights-of-way could be required for Concept XII in the long term.
2.5.3.3 Economics With respect to its economic comparison of Concepts V and XII, the Board found that
• Concept V has a higher capital cost in comparison to Concept XII, both in the short term and in the long term;
• it generally agreed with AESO’s approach to determine the extent and value of the reduction in line losses that would result from the development of each concept;
• AESO’s approach to discount rate was reasonable;
• AESO’s load forecast was reasonable because the growth rate for its load forecast was relatively similar to the historical load growth rate;
• AESO’s estimates regarding future Alberta Pool prices were reasonable;
• Pool prices are likely to be at or above $50 per megawatt hour (MWh) during the forecast period;
• Concept V has substantially higher loss savings, or a much greater reduction in line losses, in comparison to Concept XII, both in the short term and in the long term; and
• AESO’s estimates of net costs were reasonable and Concept V would be significantly superior to Concept XII in terms of both line loss saving benefits and net costs.
3 THE REQUESTS TO REVIEW DECISION 2005-031
3.1 The Board’s Authority to Review Its Own Decisions The Board’s authority to review Decision 2005-031 is provided by Section 64 of the Public Utilities Board Act, which states: 64 The Board may rehear an application before deciding it and may review, rescind or vary any order or decision made by it.
8 • EUB Decision 2006-114 (December 6, 2006) Request for Review and Variance of Decision 2005-031
The Board considers that Section 64 provides it with broad discretion with respect to its review process. The Board considers that inherent in the authority to review its own decisions is the authority to review specific findings within a decision while upholding other findings in that same decision.
Section 46 of the Alberta Energy and Utilities Board Rules of Practice establishes a two-stage process for the consideration of a review request. First, the Board must determine whether a review is warranted based upon the submissions of interested parties. Subsection 46(5) states that a review should be granted in two circumstances:
• when a review applicant alleges an error in law, jurisdiction, or fact that, in the opinion of the Board, raises a substantial doubt as to the correctness of the decision, or
• when a review applicant alleges new facts, a change in circumstances or facts not previously placed in evidence that could lead the Board to materially vary or rescind its decision.
Second, should the Board determine that a review of one or more elements of its decision is necessary the Board must hold a review hearing. In the review hearing, the Board must decide whether the original decision should be affirmed, varied, or rescinded.
The Board considers that the burden of proof in a review hearing rests upon the review applicant, with the standard of proof being the balance of probabilities.
3.2 The Review Requests Six parties requested the EUB to review Decision 2005-031:
• Cheryl Kalev
• Benalto and District Community Group
• Lochend to Langdon Power Group
• Cottonwood-Spruce View Power Group
• Lavesta Area Group
• Warburg Powerpoint Group
These parties universally expressed the concern that there was insufficient notice of the initial NID hearing and thus that they were denied an opportunity to provide evidence at that hearing. A quorum of the Full Board of the EUB considered the review requests and the submissions filed by other interested parties, including those that participated in the original NID hearing, and decided to grant a limited review of Decision 2005-031. While the Full Board found that the notice it issued was appropriate given the nature of the NID application, it recognized that the review applicants represented a significant number of Albertans with serious concerns regarding the approval of transmission system expansion and enhancements within the West Corridor. The Full Board found that it would be in the public interest to have a review panel consider new or previously unavailable evidence regarding the suitability of the West Corridor at a review hearing. The Full Board therefore granted the request for a review to consider whether its decision should be varied or rescinded. However, the Full Board also confirmed that it would not reconsider the issue of whether there was a need for expansion or enhancement to the N-S transmission system or any other matter decided at the first hearing.
EUB Decision 2006-114 (December 6, 2006) • 9 Request for Review and Variance of Decision 2005-031
4 THE REVIEW HEARING
4.1 Notice and Information Sessions On April 26, 2006, the EUB issued a Notice of Hearing for the review hearing. The notice was published in the Calgary Herald, the Calgary Sun, the Edmonton Journal, the Edmonton Sun, the Red Deer Express, and 15 weekly newspapers. The notice was also mailed or e-mailed directly to the review applicants and other parties that participated in the first stage of the review process and to the parties registered in the original NID hearing. Following a request for an adjournment, the EUB issued a Revised Notice of Hearing on May 12, 2006. The revised notice was published and distributed in the same manner as the initial notice.
In addition to providing notice of the review hearing, the EUB also held public information sessions in Red Deer, Bluffton, and Rimbey to help participants understand the EUB’s hearing process so they could better prepare for their participation. The EUB directly notified interested parties of the information sessions and published notice of the Red Deer session in the Red Deer Advocate. Each of the information sessions was well attended.
4.2 Hearing Participants
Formal Participants
The Board found that the review applicants, parties that filed submissions in the first stage of the review process, and parties registered in the first hearing would all have the right to formally participate in the review hearing. As full participants, these parties had the right to file written submissions, provide oral evidence, cross-examine parties, and make final argument.
The following parties supported the review applications and fully participated in the hearing:
• UPTAG (a group comprising Cheryl Kalev and the members of the Benalto and District Community Group, Cottonwood-Spruce View Power Group, and Warburg Powerpoint Group)
• Lochend to Langdon Power Group and Corridor 566 Group (LLPG/566 Group)
• Lavesta Area Group (Lavesta)
• ATCO Electric (ATCO)
• First Nations
• Benign Energy Canada Inc. (Benign)
The Review Panel recognizes that the formation of UPTAG, LLPG/566 Group, and Lavesta required considerable efforts by their respective members. The Review Panel notes that collectively these three groups represented about 1500 individuals and considers that their cooperation added considerably to the effectiveness of their respective presentations and to the efficiency of the hearing process. The Review Panel thanks the members of these groups for their assistance in this regard.
The following parties opposed the review applications and fully participated in the review hearing:
• AESO
10 • EUB Decision 2006-114 (December 6, 2006) Request for Review and Variance of Decision 2005-031
• AltaLink Management Ltd. (AltaLink)
• City of Calgary (Calgary)
• EPCOR Utilities Inc. (EPCOR)
• TransAlta Corporation (TransAlta)
Informal Participants Prior to the commencement of the review hearing, the Review Panel became aware that there were individuals who did not strictly meet the requirements for formal participation who wished to provide the Review Panel with their views on the issues raised by the review requests. Since the fundamental purpose of the review hearing was to hear from individuals who wished to speak to the suitability of the West Corridor, the Review Panel decided to relax its formal rules of participation and allow these individuals to make short oral presentations during the course of the review hearing. The Review Panel considers that this flexible approach was beneficial to the hearing process and appreciates the time and effort these individuals put into their submissions. The Review Panel also appreciates the patience and cooperation of the full participants who agreed with the Review Panel that it was appropriate to exercise exceptional flexibility in its procedure so as to hear from the informal participants.
Some of the submissions made by the informal participants related to matters outside the scope of the hearing. However, many of the submissions helped the Review Panel appreciate the range and depth of the concerns experienced by residents within the West Corridor. The matters raised by the informal participants were very similar to those raised by those formal participants urging the Board to vary or rescind Decision 2005-031 and included concerns regarding agricultural, residential, and environmental impacts and health and safety.
4.3 The Review Hearing The review hearing started on July 31, 2006, in Red Deer, Alberta, before a division of the Board that initially consisted of B. T. McManus, Q.C. (Presiding Member), J. D. Dilay, P.Eng. (Board Member), and G. J. DeSorcy, P.Eng. (Acting Board Member) (collectively, the First Panel). However, on the first day of the review hearing, Lavesta expressed concern that Mr. McManus and Mr. DeSorcy were on the Board Panel that issued Decision 2005-031 and approved the NID application and that they could form a majority in the review hearing. On these grounds, Lavesta alleged that there was a reasonable apprehension of bias that Mr. McManus and Mr. DeSorcy would be unable to divorce themselves from their previous decision and would not consider the new evidence in a fair and impartial manner. Lavesta also contended that because Mr. Dilay had communicated with Mr. McManus and Mr. DeSorcy, he would also be incapable of considering the new evidence in a fair and impartial manner. Lavesta therefore requested that the First Panel recuse itself.
The First Panel heard extensive legal arguments from participants with respect to issue of reasonable apprehension of bias. The First Panel adjourned the proceeding to consider the motion and prepare a ruling on the matter.
The First Panel determined that Lavesta did not satisfy the legal tests respecting reasonable apprehension of bias and concluded that the constitution of the First Panel was legally proper. Additionally, the First Panel noted that the review and variance requests were granted not to correct an error but, rather, to receive additional information respecting the corridor issue that
EUB Decision 2006-114 (December 6, 2006) • 11 Request for Review and Variance of Decision 2005-031
may not have been available to the original decision-making panel. However, the First Panel recognized that because two of three members were involved in the original hearing and decision, some Albertans may have perceived a bias. At the same time, the First Panel acknowledged that it had an obligation to other participants in the process who wished to proceed without delay with this very important matter. For that reason, the First Panel considered that continuity with the initial decision was necessary and that this was best accomplished by having at least one of the decision makers from the original NID hearing involved in the review hearing.
The First Panel concluded that a different panel comprising a majority of members who were not involved in the original decision would balance the issue of the perception of bias with the issue of continuity. 9 The First Panel therefore contacted the Chairman of the EUB and recommended that a different panel be established for the purpose of this review. The Chairman appointed the final Review Panel, comprising B. T. McManus, J. D. Dilay, and T. McGee. The First Panel closed the review hearing on August 2, 2006. The Review Panel reopened the review hearing shortly thereafter. The evidentiary portion of the review hearing closed on August 11, 2006. The written argument process concluded on September 12, 2006, and therefore, the record of the hearing is considered to have been closed on that date.
4.4 Preliminary and Interlocutory Motions In addition to the bias motion described above, the Review Panel considered an exceptional number of preliminary and interlocutory motions during the proceeding. These motions essentially sought either an adjournment of the review hearing or the complete rescission of Decision 2005-031. In accordance with the Board’s practice, hearing participants were provided with an opportunity to comment on the various motions, and the right to respond to these comments was extended to the party that brought the motion. Ultimately, the Board denied each of the motions raised and provided its reasons for doing so during the course of the proceeding.
The Review Panel’s rulings with respect to the following motions are attached as Appendix E to this decision:
• a request by J. Anglin and others that the hearing be adjourned because they alleged that the Board’s notice was insufficient;
• a request by R. Lawson that the hearing be adjourned to allow him to retain counsel and experts;
• a request by the First Nations that a portion of the hearing be moved to Pigeon Lake to allow more convenient participation of its elders; and
• 17 requests by Lavesta that the hearing be adjourned or, alternatively, that Decision 2005- 031 be rescinded based on 17 different grounds (referred to at the review hearing as the “omnibus motion”).
4.5 Issues The review hearing was granted by the Full Board specifically to reconsider the suitability of the West Corridor for future transmission upgrades. Given its decision to set the scope of the hearing, the Review Panel considers the issues in this hearing to be as follows:
9 The full text of the Board’s ruling on the bias motion is attached as Appendix D. 12 • EUB Decision 2006-114 (December 6, 2006) Request for Review and Variance of Decision 2005-031
• Was AESO’s methodology for the high-level comparison of corridor alternatives reasonable?
• What are the high-level environmental, landowner, and/or agricultural issues associated with the West, Central, Central/East,10 and East Corridors, based on a comparison of - agricultural impacts,
- residential impacts,
- environmental impacts,
- electrical considerations,
- visual impacts,
- special constraints,
- health and safety impacts,
- First Nations impacts, and
- other matters
5 PRELIMINARY MATTERS
5.1 The Filing of a Transmission Facility Application by AltaLink AltaLink testified at the review hearing that it was preparing to file a transmission facility application for specific transmission facilities within the West Corridor in September 2006. In response to a question posed by Board Counsel, AltaLink confirmed that it understood the risks involved in filing its facility application prior to the Board issuing a ruling on the review hearing. Specifically, AltaLink acknowledged that the Review Panel could vary or rescind Decision 2005-031, effectively rendering its transmission facility application void.
On September 12, 2006, AltaLink filed a transmission facility application under the HEEA seeking approval for specific transmission facilities within the West Corridor. This application was filed following the close of the written argument process for the review hearing.
A separate Board panel was assigned by the Chairman of the EUB to consider AltaLink’s transmission facility application. The Review Panel chose to isolate itself from the AltaLink transmission facility application and therefore did not read or have any other involvement in the consideration of that application.
5.2 Lavesta’s Jurisdictional and Process Concerns Lavesta raised a number of concerns in its final argument regarding the Board’s jurisdiction and the process it adopted for the review hearing. Those concerns included
• allegations of lack of proper notice,
• an allegation that the Board improperly limited the scope of the review hearing,
• an allegation of noncompliance with Section 28 of the Transmission Regulation,
• an allegation of lack or loss of jurisdiction, and
• an allegation of reasonable apprehension of bias.
10 ATCO proposed a new Central/East Corridor in the review hearing. EUB Decision 2006-114 (December 6, 2006) • 13 Request for Review and Variance of Decision 2005-031
All of the above issues were raised one or more times by Lavesta during the course of the proceeding as part of the interlocutory motions discussed above. While the Board considers that it fully addressed these concerns at the review hearing, it is of the view that an additional response is necessary because of the seriousness of the allegations reiterated in Lavesta’s final argument.
5.3 Allegation of Lack of Proper Notice Lavesta argued that the Board provided insufficient notice of the review hearing. Lavesta alleged that the notice failed to properly disclose the purpose of the review hearing and noted that the notice did not include a map. Lavesta also repeated its concerns that the Board did not give proper notice when it reopened the review hearing with a new panel.
Regarding Lavesta’s concern about notices, the Review Panel considers it germane that the review hearing was not a hearing of an application in the first instance; rather, it was a hearing to review specific findings made by the Board in Decision 2005-031. The Board notes that notice of this proceeding was provided to parties that had been fully engaged in the Board’s process on this issue for some time prior to the notice being issued, including the review applicants themselves with Lavesta being one of those applicants. All parties that received the notice and the revised notice had either been fully engaged in the Board’s step-1 review process or advised of the step-1 review process. All of the parties that requested a review of the proceeding, including Lavesta, specifically cited the West Corridor in their requests.
The Review Panel finds that its notice and revised notice for the review hearing cannot be understood to exist in a vacuum and that it was reasonable to expect that the notice would be received and understood within the context of the ongoing process that the parties were engaged in. Given this context, the Review Panel finds that the content of the notice adequately described the decision that needed to be made at the review hearing and the powers to be exercised.
Regarding lack of notice of the reopening of the review hearing with a new panel, the Review Panel considers this issue to be without merit. The Review Panel notes that Lavesta was unable to specify what prejudice, if any, it suffered as a result of the change to the panel’s composition. The Board considers that the intention of notice is to allow all interested parties a fair opportunity to participate in the EUB’s process. The Review Panel is of the view that this opportunity was unaffected by its decision to modify the panel to address concerns expressed by Lavesta.
5.4 Allegation that the Board Improperly Limited the Scope of the Review Hearing Lavesta argued that Subsections 46(6) and (7) of the EUB Rules of Practice essentially preclude the Board from limiting the scope of a review hearing. Lavesta contended that compliance with these subsections required the Board to grant a full review of all of the issues considered within the original NID hearing.
Subsections 46(6) and (7) of the Rules of Practice read as follows:
(6) If the Board grants the application under subsection (5), it shall issue a notice of review, and a new hearing must be held in accordance with these Rules.
(7) A notice of review under subsection (6) must contain the same information as is contained in a notice of hearing. 14 • EUB Decision 2006-114 (December 6, 2006) Request for Review and Variance of Decision 2005-031
The Review Panel disagrees with Lavesta’s interpretation and specifically finds that Subsection 46(7) imposes no restriction on matters that the Board may consider upon a review of one of its decisions. As noted previously, the Board’s authority to review its own decisions comes from Section 64 of the Public Utilities Board Act. That section is broadly written and, in the Review Panel’s opinion, provides significant discretion for the Board to review its own decisions, including the discretion to review only certain aspects of a decision. The Review Panel sees an appropriate analogy to be the power of the Court of Appeal to determine the issues upon which it may grant leave to appeal.
The Review Panel finds Subsection 46(7) to be a procedural provision that describes what information must be included in a notice for review. The Review Panel interprets this section to mean that when issuing a notice in relation to a review proceeding, that notice must contain the same type of information that would be included in a notice of hearing in the first instance. The Review Panel finds support for this interpretation in Section 22 of its Rules of Practice, which describes the information requirements for a notice of hearing. For instance, both types of notice must be in writing, briefly describe the subject matter of the hearing, indicate the date, time, and place of the hearing. The Review Panel considers that Subsection 46(7) was drafted to ensure consistency of process for giving notice for hearings in the first instance and for hearings of reviews.
5.5 Allegation of Noncompliance with Section 28 of the Transmission Regulation Lavesta argued that the Board lost jurisdiction to further consider the NID application at the review hearing by virtue of noncompliance with Section 28 of the Transmission Regulation, which states:
28 The Board must make a decision on an application under section 34(1) of the Act within 180 days of receipt by the Board of the complete application.
Lavesta raised the same concern prior to the commencement of the review hearing. The First Panel determined that this issue was outside of the scope of the review hearing and referred this matter back to the Full Board for consideration as an additional request for review of Decision 2005-031. On July 26, 2006, the Full Board determined that Lavesta failed to raise a serious question as to the correctness of Decision 2005-31. Specifically, the Full Board found the following:
1) That Lavesta had not shown that the Board made an error with respect to the interpretation of the applicability of Section 28 of the Transmission Regulation. More specifically, the Board did not consider that all of the timing constraints set out in the regulation were adaptable to the application. In this regard, the Board noted that the timing of the hearing and the issuance of its decision were affected by various factors, including three adjournment requests received from the parties and granted by the Board, and the complex nature of the NID application. In addition, the Board noted that Lavesta failed to establish that it experienced any prejudice as a result of the Board’s issuance of Decision 2005-31 on April 14, 2005.
2) Furthermore, Lavesta failed to demonstrate that any exceptions to the rule against retroactivity and retrospectivity would apply in this case, given the procedural nature of Section 28 of the Transmission Regulation and the application of Section 36 of the Interpretation Act.
EUB Decision 2006-114 (December 6, 2006) • 15 Request for Review and Variance of Decision 2005-031
3) That, regardless, the time deadline established by Section 28 of the Transmission Regulation is directory, and therefore a failure to comply with this deadline would not render the Board without the jurisdiction to consider an application.
4) That Lavesta’s arguments related to the suitability of the West Corridor are the subject of a separate Board proceeding and that it failed to otherwise establish that the Board erred in its consideration of Application No. 1346298.
The Review Panel is of the view that it has no mandate to further consider this issue and considers the Full Board’s decision on this matter to be binding and determinative of the issue.
5.6 Allegation of Lack or Loss of Jurisdiction Lavesta alleged that the Review Panel was without jurisdiction in considering a number of issues at the review hearing. However, the Review Panel notes that Lavesta did not particularize the issues relied on in support of this statement. The Review Panel therefore dismisses this claim as being wholly without merit.
5.7 Allegation of Bias in the Proceedings Lavesta argued that the Review Panel failed to consider issues raised at the review hearing in a fair and independent manner. Lavesta contended that the Review Panel predetermined the outcome of the proceeding and would therefore be incapable of considering any new evidence with an open mind. Lavesta stated that its concerns were validated by the “demeanour and directions of the Board Panel throughout the hearing.” In support of this contention, Lavesta relied on the Newfoundland Telephone Company Ltd. v. Board of Commissioners of Public Utilities S.C.C. 89 D.L.R 4th, 289.
The Review Panel notes that the Newfoundland Telephone case related to statements made by a member of the Board of Commissioners of Public Utilities regarding salaries and pensions for the executives of the Newfoundland Telephone Company. The commissioner in question stated that certain salaries for which the company was seeking approval were excessive or even ludicrous. He made these statements publicly prior to, during, and after the hearing before the board’s decision on the matter was issued. The Newfoundland Telephone Company challenged the board’s decision on a number of grounds, including that the commissioner’s statements gave rise to a reasonable apprehension of bias. The case eventually made its way to the Supreme Court of Canada, which concluded that the commissioner’s statements were evidence that he had a closed mind on the subject of executive pensions and salaries and that allegation of reasonable apprehension of bias had been established.
The Review Panel understands the test for a reasonable apprehension of bias to be whether an informed person viewing the matter realistically and practically and having thought the matter through would think it is more likely than not that the decision maker, whether consciously or unconsciously, would not decide fairly.
The Review Panel finds that the circumstances of the Newfoundland Telephone case are entirely different from what arose at the review hearing. The Review Panel observes that Lavesta provided no evidence in support of its allegation that the panel members approached the review hearing with a closed mind. In the absence of any particulars, the Review Panel finds that it has no choice but to dismiss this claim as being without merit.
16 • EUB Decision 2006-114 (December 6, 2006) Request for Review and Variance of Decision 2005-031
6 THE PUBLIC INTEREST
The Review Panel recognizes that the approval of a new transmission line likely represents an unwanted intrusion for those living along its route. Transmission towers are large structures that may have a significant impact upon the lands and people that surround them. They may degrade surrounding scenery, impact agricultural operations, and have an influence on property value. However, the development and maintenance of a safe, reliable, and economic transmission system is essential for Alberta’s growing population and economy. The difficult task before the Review Panel is to determine whether transmission upgrades within the West Corridor are in the public interest.
The Review Panel recognizes that the “public interest” cannot easily be reduced to a convenient definition derived from strictly objective measures. While such determinations must be informed by the general and specific objects of the applicable legislation, the Review Panel acknowledges that the ultimate determination of the “public interest” will be dictated by the particular circumstances of each Section 34 NID application.
The EUB’s governing legislation has established that transmission development in Alberta must be predicated on a transmission system that is efficient, reliable, flexible, and not discriminatory, with the ultimate goal being the creation of a fair, efficient, and competitive open generation market. Section 24(a) of the Transmission Regulation specifically states that the achievement of these goals is in the public interest. These goals are expressed in greater detail in Sections 5, 16, and 17 of the Electric Utility Act and are also reflected in Sections 5, 8, and 24(b) of the Transmission Regulation.
As noted previously, AESO is required to assess a variety of transmission upgrade options when it prepares a Section 34 NID application. In Decision 2005-031, the Board determined that each alternative must be assessed based on transmission planning and system performance requirements, high-level routing/corridor considerations, and economics.
The Board emphasized in Decision 2005-031 that it was not possible to assign a specific weight to each factor when assessing transmission upgrade options. It specifically recognized that economic considerations may prevail in some applications, while high-level routing considerations would be paramount in others. Essentially, the Board confirmed that its assessment of the public interest requires it to balance the benefits associated with a particular transmission upgrade option with the associated impacts. This exercise necessarily requires the Board to balance impacts that will be experienced on a provincial basis, such as system performance, reliability, and economics, with high-level routing or corridor impacts that would be more regional in nature.
Such an approach is consistent with the Board’s historical position that the public interest standard will generally be met by an activity that benefits the segment of the public to which the legislation is aimed, while at the same time minimizing to an acceptable degree the potential adverse impacts on more discrete parts of the community.11 As such, when assessing whether the approval of Concept V remains in the public interest, the Review Panel must integrate the new information regarding the suitability of the West Corridor generated by the review hearing with
11 EUB Decision 2001-33: EPCOR Power Development Corporation and EPCOR Generation Inc., Rossdale Power Plant Unit 11 (RD 11), Application No. 990289, May 2001, page 6. EUB Decision 2006-114 (December 6, 2006) • 17 Request for Review and Variance of Decision 2005-031
its assessment of transmission planning and system performance requirements and economic considerations contained in Decision 2005-031.
7 WAS AESO’S METHODOLOGY FOR ITS HIGH-LEVEL COMPARISON OF CORRIDOR ALTERNATIVES REASONABLE?
7.1 Views of the Parties UPTAG raised several concerns with respect to the methodology and analysis employed by AESO in its high-level comparison of the corridor alternatives, including that
• AESO’s analysis of the technical and economic attributes of the transmission upgrade concepts was far more detailed than its analysis of corridor selection;
• AESO’s analysis conflated route and corridor criteria; and
• ATCO and AltaLink used different methodologies for the corridor assessments provided to AESO, with ATCO providing a more detailed analysis.
AltaLink disagreed with these assertions and argued that AESO’s corridor comparison in the NID application was reasonable and in accord with regulatory requirements. Calgary took no position on the reasonableness of AESO’s approach but did offer advice to the Review Panel as to how it should assess the reasonableness of AESO’s corridor comparison analysis.
AESO argued that its approach to corridor comparison was reasonable. AESO described its corridor assessment process in Section 4.3.4 of the NID application as follows:
The purpose of this section is to provide a high level comparison of the corridor alternatives with respect to relative impacts on various land use considerations. A corridor alternative is defined as a broad area several kilometres in width, running between the defined terminal destinations of a proposed transmission line within which routes could be selected for locating the facility. The high level corridor evaluation is conducted without determining a specific line route and considers on a generic basis the potential impacts of a transmission right-of-way within the corridor.12
AESO assessed each of the corridors based on information provided to it by ATCO and AltaLink regarding • agricultural impact, • residential impact, • environmental impact, • cost, • electrical considerations, • visual impacts, and • special constraints.
AESO stated that these criteria (the “ERCB criteria”) were derived from two 1980 decisions of the Energy Resources Conservation Board (ERCB) relating to specific routing of 500 kV transmission lines. In those decisions, each criterion was further broken down into a number of evaluation factors. AESO testified that it advised both AltaLink and ATCO that the above
12 Application No. 1346298, page 60. 18 • EUB Decision 2006-114 (December 6, 2006) Request for Review and Variance of Decision 2005-031
criteria should be used as a basis for their respective analysis. AESO indicated that it consulted with both AltaLink and ATCO throughout their assessment processes to ensure that the information generated by each was comparable. AESO stated that it then used the data generated by ATCO and AltaLink to perform its corridor analysis.
On the basis of the information provided by AltaLink and ATCO, AESO concluded that the East and West Corridors presented similar degrees of challenge to siting a transmission line, with the Central Corridor presenting the greatest challenge. AESO then went on to compare the relative impacts associated with each of its 13 upgrade alternatives in terms of least, mid, and most potential impacts. It determined that Concepts I, III, IV, and XII would have the most potential impacts, Concepts VI, VII, IX, X, and XIII would have the least potential impact, and Concepts II, V, VII, and XI would have mid potential impact.
7.2 Views of the Review Panel The Review Panel notes that the NID application was filed before the Transmission Regulation came into force and at that time Section 5.1.2 of EUB Directive 02813 provided the only regulatory requirements relating to corridor comparisons. That section states:
5.1.2 Provide comparisons between alternatives considered and the proposed expansion or enhancement regarding the following: 5) Details of the proposed expansion or enhancements and alternatives, including economic assessment, capital costs, and overall system development plan for the area under consideration 6) Rating of the new substation and/or transmission lines(s) for the spectrum of operating conditions expected 7) Expected (reductions in) transmission system losses 8) System performance by way of load flow studies, stability studies, reactive constraint studies, and other necessary studies 9) Transmission Must Run (TMR) impacts 10) Substation configuration 11) Transmission circuit configuration and conductor size and arrangement 12) Economic and technical consideration of the transmission line corridors, including • capital cost comparison of the transmission line corridors • high-level landowner and/or agricultural issues • initial determination of right-of-way width and cost
The Review Panel finds that Directive 028 includes specific guidance to AESO regarding what information must be provided to allow a comparison of alternatives on technical and economic merits. In addition, the Review Panel notes that standards regarding technical and economic performance for transmission system upgrades were also extensively addressed in the Government of Alberta’s Transmission Development Policy (TDP) announced in November 2003. The Review Panel considers that the level of detail of the technical and economic information included in the application conformed with the requirements and expectations expressed in those two documents.
The Review Panel finds that significantly less direction was provided to AESO with respect to corridor evaluation. It notes that the TDP does not address this issue, and the sole direction provided in Directive 028 is to compare high-level landowner and/or agricultural issues. The
13 Directive 028: Applications for Power Plants, Substations, Transmission Lines, and Industrial System Designations. EUB Decision 2006-114 (December 6, 2006) • 19 Request for Review and Variance of Decision 2005-031
Review Panel also recognizes that this was only the second Section 34 NID application prepared under the new legislation and that it was filed prior to the Board issuing any rulings or directions with respect to corridor assessment in relation to the first Section 34 NID application. Given the level of guidance provided with respect to corridor assessment, statutory or otherwise, the Review Panel finds that it was reasonable for AESO to adapt the high-level ERCB criteria for the assessment of corridors. The Board notes, in that regard, the following passage from ATCO’s preliminary assessment of the East Corridor: The study of broad corridors will result in identification of land use and environmental issues for an area in general rather than specific impacts. Therefore routing factors are assessed on general patterns rather than site specific features. While the corridor level analysis does not permit definitive counts of key factors that will decide a final route (eg. proximity to residences, tree clearing hectares, etc.) it does provide a meaningful indication of significant factors (prevalence of high-density residential developments, extensive areas of cropland, etc.) that permits the comparison of broad routing corridors. The corridor level information is a reasonable surrogate of the specific impacts likely to be encountered at the site specific routing stage.14
The Review Panel agrees with ATCO’s conclusion that corridor-level information is a reasonable surrogate for the specific impacts likely to be encountered at the routing stage. The Review Panel finds that AESO’s decision to adapt the ERCB criteria for corridor assessment was reasonable and responsive to the only regulatory requirements then existing, i.e., to provide a high-level comparison of landowner and agricultural issues. While the detail provided by AESO in this regard was not at the same level of detail as that provided for the technical and economic attributes of the various alternatives, the Review Panel finds that this is a reflection of the information requirements then in place.
The Review Panel also notes that the legislative framework for Section 34 NID applications specifically contemplates that TFOs will provide assistance to AESO in preparing those applications. Section 39(2) of the Electric Utilities Act states: “each owner of a transmission facility must, in a timely manner, assist the ISO in any manner to enable the ISO to carry out its duties responsibilities and functions.” This direction was confirmed and further clarified when the Transmission Regulation was passed. Specifically, Section 7 of the Transmission Regulation states that a TFO “must assist AESO in the preparation of forecasts, the long-term transmission system outlook documents, transmission system plans, needs identification documents, and updates to them, as directed by AESO.” Given this statutory direction, the Review Panel considers that it was both reasonable and appropriate for AESO to request AltaLink and ATCO to provide information to assist in preparing its corridor assessment summary.
Regarding UPTAG’s assertion that the AltaLink and ATCO reports are incomparable, the Review Panel finds that the two reports are not as different as UPTAG has alleged. For example, in its assessment of the East Corridor,15 ATCO provided a rating for each of the ten evaluation factors for the residential impacts criteria. However, earlier in that report, at Section 3.2, ATCO explained its analysis methodology and stated that nine of the ten factors were in fact undeterminable at the corridor level. Further, ATCO acknowledged on page 17 of its report that many of the factors are site specific and could not be evaluated at the corridor level.16 ATCO confirmed that it focused its evaluation on specific “key factors” described in its Table 8 on page 20 of its report. ATCO stated that “these key factors provide the most meaningful comparison
14 Exhibit N4 (c), pages 1-2. 15 Exhibit N4 (c). 16 Exhibit N4 (c), page 17. 20 • EUB Decision 2006-114 (December 6, 2006) Request for Review and Variance of Decision 2005-031
and differentiation of Alternatives at the corridor level and, indirectly indicate the degree to which other factors may be expected to occur as routing constraints.” The Review Panel observes that ATCO’s key factors were similar to the information considered by AltaLink, as reflected in its comparison of routes in Section 4.1 of its report.17
For example, ATCO and AltaLink both premised their assessments of agricultural impacts on land use within the respective corridors. AltaLink examined the amount of cultivated and pasture land within the corridors it assessed, and ATCO estimated the amount of cultivated/cropland, forage, grassland/pastureland, and forested areas in its corridors for its agricultural impact assessment. In final argument, AESO confirmed that it treated cropland and forage as “cultivated” land. As such, the Review Panel finds that AESO’s conclusions with respect to agricultural impact for each corridor were premised upon the consistent use of similar information.
Similarly, the Review Panel considers that ATCO and AltaLink relied on similar types of information to describe residential impacts, environmental impacts, visual impacts, and special constraints within the respective corridors.
The Review Panel also finds that AESO took reasonable steps, both during the TFO’s assessment process and after the process when AESO conducted its own analysis, to ensure that its corridor assessment was reasonable. The Review Panel notes in that regard that both ATCO and AltaLink confirmed that AESO provided ongoing direction and oversight to ensure that their respective conclusions were reasonably comparable. For example, ATCO noted the following with respect to its assessment of social/residential considerations: As requested by AESO and for consistency of comparison of factors with corridors being evaluated by another TFO, ATCO used a methodology to estimate the approximate number of stakeholders affected for a reasonable number of routes based on municipal population density data.18
Further, the Review Panel notes that AESO’s Corridor Assessment Summary19 explicitly states exactly what information AESO considered when conducting its analysis of the various criteria. While there may have been apparent discrepancies in the information provided by the two TFOs, the Review Panel finds that AESO’s synthesis of that information ensured that it was in fact comparing “apples to apples.”
For the reasons expressed above, the Review Panel finds that the concerns expressed by UPTAG regarding the legitimacy of AESO’s methodology for corridor comparison have not been substantiated. In that regard, the Review Panel finds that AESO’s methodology for corridor alternative comparisons was reasonable and in accordance with existing requirements.
8 HIGH-LEVEL ENVIRONMENTAL, LANDOWNER, AND AGRICULTURAL ISSUES ASSOCIATED WITH THE WEST CORRIDOR
8.1 Introduction Decision 2005-031 focused on Concepts V and XII, as no other concepts were supported by interested parties. The Board determined that Concept V was superior to Concept XII because it
17 Exhibit N4 (b), pages 7-9. 18 Exhibit N4 (c), page 12. 19 Exhibit N4 (a). EUB Decision 2006-114 (December 6, 2006) • 21 Request for Review and Variance of Decision 2005-031
would require fewer greenfield transmission lines to meet the identified need. Given the circumstances, the Board did not include a direct comparison of the three corridors in Decision 2005-031.
As noted in Section 7.2, the Review Panel is of the view that AESO’s methodology for high- level corridor assessment was in accordance with existing regulatory requirements and its conclusions were reasonable, based on the information then available. AESO summarized its corridor assessment in the following table taken from the application.
West Corridor Alternative Central East Corridor Alternative Genesee to NW Corridor Ellerslie to Tofield to Northwest Calgary to Alternative Tofield Area Langdon (East) Calgary Langdon Corridor Corridor (West) Corridor Corridor 75% of 25% of 100% of an 20% of 80% of Ellerslie Genesee to Genesee to Ellerslie to Ellerslie to to Langdon Langdon Langdon Langdon Langdon Route Route Route Route Route Agricultural Impact Mid (New) Most Most Mid Mid Least (Rebuild) Residential Impact Least Most Most Most Least Environmental Mid (New) Least Least Least Least Impact Least (Rebuild) Cost Cost to be addressed separately in the Need Application Electrical Mid Mid Mid Mid Mid Considerations Visual Impacts Least Most Mid Most Least Special Constraints Least Most Least Most Least
This section of the decision provides the Review Panel’s re-evaluation of AESO’s assessment of the West, Central, and East Corridors based upon the new evidence presented in the review hearing. The Review Panel also considered the relative impacts associated with a route located within ATCO’s Central/East Corridor. However, because ATCO’s evaluation of the Central/East Corridor was not based upon the ERCB criteria, a direct comparison was not always possible. In those circumstances, the Review Panel has either relied upon estimates based upon ATCO’s evidence or referred to ATCO’s rating of the Central/East Corridor that was provided when questioned by Board Counsel.
The Review Panel then integrates these findings into its overall assessment of Concept V to make an ultimate determination regarding the suitability of the West Corridor for the proposed 500 kV transmission line.
The Review Panel compared the combined West and East Corridors to the other corridors presented. As such, the Review Panel’s reference to the West Corridor includes Genesee to Lochend to Langdon, and its reference to the East Corridor includes Ellerslie to Tofield to Langdon. The Review Panel considered that this approach provided for the most direct comparison of the impacts associated with each corridor. Further, the Review Panel’s analysis of the West Corridor was based upon a greenfield corridor and not upon a rebuild option. The
22 • EUB Decision 2006-114 (December 6, 2006) Request for Review and Variance of Decision 2005-031
Review Panel chose this approach on the basis that the impacts associated with a greenfield project would be greater than those associated with a rebuild of an existing line.
The Review Panel notes that a number of parties chose not to comment specifically on the criteria assessed by AESO and instead addressed the issues raised in this proceeding at a more general level. While the Review Panel took these comments into account in making its decision, it has not reproduced those positions in this report. The Review Panel adopted a similar approach with respect to the concerns raised by the informal participants, i.e., it has not reproduced their positions but took them into account in making its decision.
Finally, it was Lavesta’s position that there was virtually no evidence at the NID hearing regarding the suitability of the West Corridor in the context of
• agricultural impacts
• residential impacts
• visual and recreational impacts
• health and safety impacts
• environmental impacts
• land-use impacts
Lavesta indicated that the only evidence being relied upon by AESO and AltaLink in relation to the issue of the suitability of the West Corridor was the Information Request by UPTAG.20 Lavesta stated that this document was never part of the record at the original NID hearing.
Lavesta argued that there was no basis to validate AESO’s corridor comparison rating system included in the NID application. Lavesta contended that neither the AESO nor AltaLink submitted any evidence in the original NID hearings or the review hearing to support or validate a rating system comparing three corridors, nor did they submit any evidence to substantiate any of the data contained in the NID application comparing corridors.
The following sections describe in detail the evidence presented at the review hearing with respect to the suitability of the West and other corridors for future transmission development. The Review Panel finds that there was ample evidence on the record to allow it to reasonably assess the suitability of all of the corridors considered for future transmission development.
8.2 Agricultural Impacts 8.2.1 Views of the Parties UPTAG argued that the quality of agricultural land in the West Corridor was superior to that encountered in the East Corridor due to better soil, more rainfall, and more groundwater. The LLPG/566 Group echoed this sentiment and provided evidence of increased crop yields in the West Corridor when compared to lands to the east. UPTAG contended that because of this superior productivity, there were significant differences between the West and East Corridors in the size and nature of agricultural operations conducted. UPTAG argued that farms in the West Corridor tended to be smaller and to require greater landowner inputs, such as fertilizer and weed control agents. UPTAG further contended that this productivity also required the use of more
20 Exhibit N 4 (b). EUB Decision 2006-114 (December 6, 2006) • 23 Request for Review and Variance of Decision 2005-031
farm machinery more frequently than in areas where there was a greater percentage of grazing lands. UPTAG concluded that because of the greater productivity of lands in the West Corridor, the impacts associated with transmission development were greater than in less productive areas.
Both UPTAG and LLPG/566 provided evidence on the nature of modern farm equipment and each gave examples of the impact transmission lines may have on the use of those machines. UPTAG contended that farming around transmission towers required farm machinery to make more than one pass around towers, giving rise to increased soil compaction and increased fuel and maintenance costs. UPTAG suggested that these impacts would be greater in the West Corridor because the farms tended to be smaller than those in the East Corridor.
UPTAG argued that even greater agricultural impacts would result if the proposed transmission line were constructed beside the existing 240 kV lines. Members of UPTAG testified that land between towers would become effectively sterilized because it was too wasteful and inconvenient to farm between them. UPTAG argued that having a number of parallel lines would sterilize even more lands in the West Corridor and noted that this would further complicate crop spraying activities.
UPTAG argued that the agricultural impacts associated with the whole West Corridor would be comparable to the Central Corridor and thus should be rated as “most impacted.” UPTAG stated that this position was confirmed by AltaLink’s witness under cross-examination.
ATCO argued that impacts on agricultural operations within the West Corridor would be cumulatively greater than those associated with the Central/East and East Corridors. It contended that routes in the western municipalities would likely be confronted with a larger portion of smaller farms, potentially higher relative values for smaller parcels, more households on the same gross area, and a higher degree of corridor impact on larger proportions of individual small parcels. ATCO stated that the West Corridor would largely entail midfield structures should AltaLink’s preferred route be chosen. ATCO contended that the placement of midfield structures, as compared to headland locations, would significantly increase impacts on agricultural operations because of
• cumulative effects of reduced efficiency of field operations,
• costs relating to overlapping farm operations,
• added cost and inconvenience of weed control,
• restrictions on aircraft spraying, and
• risk of equipment collision with towers.
ATCO argued that a greenfield route in the Central/East Corridor could potentially offer greater flexibility to use headland structures along field boundaries. ATCO stated that the Review Panel should strive to select the corridor that minimized impacts to agricultural operations.
AltaLink argued that the East, Central/East, and West Corridors all would have similar impacts. More specifically it contended that, according to ATCO’s testimony, the agricultural impacts associated with the Central/East Corridor would be similar (“mid” rating) to those associated with the West Corridor.
24 • EUB Decision 2006-114 (December 6, 2006) Request for Review and Variance of Decision 2005-031
AltaLink acknowledged that transmission towers could impact farming activities, but noted that it would locate towers in a manner that would have the lowest overall impact. In response to concerns raised by ATCO regarding headland and mid-field structures, AltaLink stated that the record showed there would be a mixture of headlands and quarter lands upon which towers would be located, regardless of the corridor chosen. AESO summarized its assessment of agricultural impact for the West, Central, and East Corridors in the following table taken from Exhibit N4 (a): Table 4.3-1 – Comparison of Agricultural Land Usage West Corridor Alternative Central East Corridor Alternative Corridor Alternative West Corridor NW Calgary to Ellerslie to East Corridor Central Langdon Tofield Area Corridor Corridor Corridor 75% of Genesee 25% of 100% of an 20% of Ellerslie 80% of to Langdon Genesee to Ellerslie to to Langdon Ellerslie to Route Langdon Route Langdon Route Langdon Route Route Agricultural Impact Mid (New) Most Most Mid Mid Least (Rebuild) Estimated amount Approximately Approximately Approximately Approximately Approximately cultivated land 160 km 75 km 228 km 53 km 170 km) (cropland and/or hay/silage) on any (65%) (90%) (70%) (50%) (45%) given route within the corridor Estimated amount Approximately Approximately Approximately Approximately Approximately grassland 50 km 10 km 80 km 40 km 185 km (rangeland/pasture) on any given route (20%) (10%) (25%) (40%) (80%) within the corridor
AESO disagreed with the assertions of interested parties that agricultural impacts in the West Corridor would be greater than in the eastern side of the Central Corridor or in the East Corridor based on its corridor assessments and information provided by AltaLink and ATCO. AESO stated that in its original evaluations, it included both forage and cropland in its classification of “cultivated lands” and observed that a considerable portion of the West Corridor (generally north of Sylvan Lake to north of Warburg) was classed as forage, which was less productive than agriculture classified as cultivated lands. AESO argued that both the Central and the East Corridors have proportionally more cropland than forage land and suggested that this indicated that greater productivity could be found in those two corridors.
AESO confirmed that it did not examine “productivity levels” of agricultural land in any of the corridors, but submitted that one would have to go a considerable distance east (including beyond the ATCO Central/East proposal) to realize a measurable decrease in productivity. AESO believed that maximum impacts would occur in the central areas of the province generally from Edmonton to Calgary. AESO stated that the impacts of a transmission line would be diminished going both east and west relative to this central area.
With respect to the number of small farms, AESO submitted that the West Corridor was comparable to the Central/East Corridor. AESO argued that UPTAG’s map 8, which showed
EUB Decision 2006-114 (December 6, 2006) • 25 Request for Review and Variance of Decision 2005-031
farms less than 129 acres,21 indicated that one would have to go a considerable distance east to realize reductions in the number of small farms.
AESO concluded that ATCO’s proposal for the examination of a Central/East option would not offer reduced impacts on land use or landowners when compared to the West Corridor.
8.2.2 Views of the Review Panel The Review Panel finds that the agricultural impact associated with a new 500 kV transmission line would be similar in each of the four corridors. In making this determination, the Review Panel considered agricultural land use (i.e., the amount of cultivated land and grassland within a corridor), agricultural productivity, farm size, and line length. The Review Panel also considered maps filed by UPTAG and ATCO regarding farm size, land value, and population density.
The following table summarizes line length and agricultural land uses in each of the four corridors examined. As ATCO did not provide land-use figures for the Central/East Corridor, the Review Panel has estimated these figures based on ATCO’s evidence that a line in the Central/East Corridor would be about 6 per cent longer than a line in the West Corridor. The Review Panel also considered the Prairie Farm Rehabilitation Administration (PFRA) landcover maps22 when estimating agricultural land use for the Central/East Corridor. The Review Panel understands that this was the same general approach that ATCO took in its original assessment of the East Corridor.23
Combined West Central/East Combined Corridor Central Corridor Corridor (estimated) East Corridor Line length 333 km 325 km 352 km 448 km Cultivated land 238 km (71%) 228 km (70%) 246 km (70%) 223 km (50%) Grassland 58 km (17%) 82 km (25%) 70 km (20%) 225 km (50%)
As noted earlier, the Review Panel understands that AESO defined cultivated land to include both cropland and hay/silage or forage lands. The Review Panel finds that this was a reasonable approach for comparison, as AESO applied it to each of the corridors examined in the NID application. The Board observes that a route in each of the four corridors would cross about the same amount of cultivated land (220-250 kilometres [km]). In terms of land use, the Review Panel sees the primary difference between the corridors with respect to agricultural use to be the amount of grassland that would be crossed by a route in each corridor, with a route in the East Corridor crossing significantly more grassland than any of the other three.
The Review Panel accepts UPTAG’s evidence that farm size is an indicator of land productivity. The Review Panel also finds it reasonable to conclude that land productivity may be reflected by land values. As such, the Review Panel considered that reasonable inferences regarding agricultural productivity may fairly be drawn from the evidence prepared for UPTAG by Stantec24 and the Average Land Value by County map prepared by ATCO.25
21 Exhibit B8 (d), Map 8. 22 Exhibit N1, Appendix C, and in Exhibit N4 (c), pages 22-23. 23 Exhibit N4 (c), page 21, paragraph 4.1. 24 Exhibit B8 (d). 25 Exhibit H2. 26 • EUB Decision 2006-114 (December 6, 2006) Request for Review and Variance of Decision 2005-031
Regarding UPTAG’s evidence, the Review Panel specifically considered Map 8: Farms Under 129 Acres, 2001; Map 9: Farms Over 2,240 Acres, 2001; and Map 10: Dairy Cow Density. These maps demonstrate that the West, Central, and Central/East Corridors all pass through Leduc County, Wetaskiwin County, Ponoka County, Lacombe County, Red Deer County, and the Municipal District of Rocky View. The Review Panel estimates that these common counties represent roughly 80 per cent of each of these corridors.
The Review Panel notes that there is very little observable difference in farm size or dairy cow density between these three corridors based upon the Stantec evidence. However, the Review Panel recognizes that there is a significantly higher proportion of large farms and a significantly lower proportion of small farms in the East Corridor when compared to the other three corridors. Similarly, the Review Panel recognizes that the dairy cow density drops off significantly in the East Corridor.
The Review Panel understands that the smaller farm sizes associated with the three western corridors will also give rise to proportionately greater population density in those corridors when compared to the East Corridor, as demonstrated by ATCO’s Map 3: Population Density by County and UPTAG’s Map 4: Rural Population Density, 2005. The Review Panel finds that a similar trend exists with respect to land values, as reflected in ATCO’s Map 2: Average Land Value by County. Again, the Review Panel notes that about 80 per cent of each of the three western corridors traverses the same counties and thus there is little difference among them in terms of population density and land values. The Review Panel recognizes that population density and land values are shown to be significantly lower in the East Corridor. Given that Directive 028 specifies that corridor comparisons should be conducted at a high level, the Review Panel considers county-level information provided by UPTAG and ATCO to be appropriate.
On the basis of the above, the Review Panel finds that there is sufficient evidence to support a finding that the productivity of the West, Central, and Central/East Corridors is roughly similar, with the East Corridor being proportionately less productive.
In support of this conclusion, the Review Panel also examined the PFRA landcover maps provided by AESO in Exhibit N4 (a) and included in ATCO’s report on the East Corridor in Exhibit N4(c). The Review Panel looked at the relative proportion of crop land, forage land, and grassland in each of the corridors and confirmed that the three most western corridors are characterized by a significantly higher proportion of productive lands (cropland and forage land) when compared to the East Corridor. Specifically, the Review Panel concludes the following:
• For the northern portion of the corridors (roughly Townships 52 to 40), the West, Central, and Central/East Corridors have a higher proportion of productive lands than the East Corridor. The Central and Central/East Corridors have a higher proportion of productive lands than the West Corridor, because of the large proportion of forage lands.
• For the southern portion of the corridors (roughly Townships 40 to 22), the West, Central, and Central/East Corridors have a higher proportion of productive lands than the East Corridor. The proportion of crop land to grassland is higher in the West Corridor than in either the Central or Central/East Corridors.
• Overall, the West, Central, and Central/East Corridors have a greater proportion of productive land than the East Corridor. The Central and Central/East Corridors appear to have a roughly equal proportion of crop land to grassland to forage, whereas the West
EUB Decision 2006-114 (December 6, 2006) • 27 Request for Review and Variance of Decision 2005-031
Corridor has a greater proportion of forage, resulting in proportionately less crop land in that corridor.
The Review Panel also acknowledges UPTAG’s evidence that smaller and more productive farms may experience greater impacts from a transmission line than their larger counterparts because of the need for greater inputs and more frequent use of farm machinery. However, the Review Panel again notes that UPTAG’s Maps 8 and 9 show relative uniformity in farm sizes in all three of the western corridors and an increase in overall farm size in the East Corridor. From this, the Review Panel concludes that the impacts described by UPTAG related to farm size would be similar for the three most western corridors and less for the East Corridor.
Regarding ATCO’s concern with respect to midfield and headland towers, the Review Panel considers that this is a site-specific routing issue that should be addressed within the context of AltaLink’s transmission facility application.
Finally, the Review Panel is of the view that it must also consider the overall length of a route within a corridor when determining agricultural impacts. In that regard, the Review Panel observes that a route in the East Corridor is estimated to be about 100 km, or 30 per cent longer than a route in any of the other corridors. The Review Panel finds that this is a significant difference in length, which must be accounted for when judging agricultural and other impacts.
Having considered all of the above, the Review Panel concludes that the agricultural impact associated with a transmission line would be similar in each of the corridors examined. While the Review Panel recognizes that there is evidence demonstrating that the lands in the three most western corridors are significantly more productive than land in the East Corridor, the Review Panel finds that this is offset by the 100 km of additional transmission line that must cross agricultural land in the East Corridor. The Review Panel is also influenced in making this conclusion by the fact that a route in each of the four corridors would cross about the same amount of cultivated land, i.e., 220 to 250 km.
8.3 Residential Impacts (Population Density/Future Development/Land Value) 8.3.1 Views of the Parties UPTAG stated that the major evaluation factor for residential impact was population. UPTAG argued that residential impacts within the West Corridor should properly be ranked as highest because of its higher population, increased country residential development, and high number of seasonal residences around Gleniffer Lake and other lakes in the area. It noted that rural population decreased significantly from west to east in Alberta. UPTAG stated that population was increasing at a much greater rate in the West Corridor and a greater rate in the Lochend to Langdon corridor than at the north end of the East or the Central/East Corridors. UPTAG stated that its evidence demonstrated that population declines with distance, both east and west of the Queen Elizabeth II (QE 2) Highway, and observed that population density fell off more rapidly to the east. UPTAG noted that ATCO Map 3: Population Density by County26 indicated that the less populated counties in western Alberta were west of the West Corridor.
UPTAG challenged AltaLink’s assertion in its direct evidence that 16 496 people resided within 800 metres (m) of a transmission line routed within the Central/East Corridor. UPTAG submitted
26 Exhibit H2. 28 • EUB Decision 2006-114 (December 6, 2006) Request for Review and Variance of Decision 2005-031
that these numbers were inconsistent with previous population estimates submitted by AltaLink and with its notification process for its application to convert the KEG 240 kV transmission line to 500 kV. It also contended that AltaLink may have overestimated the length of a line out of Ellerslie and failed to take into account the Transportation and Utility Corridor (TUC) in south Edmonton.
UPTAG argued that housing starts were an indication of development potential and noted that its Map 327 showed that more rural housing starts occurred in the West Corridor. It contended that this meant more potential adverse effects on residences, particularly with a parallel route that would not have the flexibility to route around residences.
UPTAG stated that decrease in property value was another important evaluative factor. It contended that properties in the West Corridor were more valuable and cited its Map 6: Rural Total Assessment Density28 in support of that proposition. UPTAG stated that the south portion of the West Corridor was developing at an extraordinary rate, with land prices skyrocketing. UPTAG stated that the report prepared by Berrien and Associates for ATCO29 showed prices in the Central/East Corridor on average being less than $2000 per hectare, with lands to the west being greater than that. UPTAG argued that factors unique to the West Corridor were driving the high rate of country residential development and land value in the West Corridor. Those factors included mountain views, trees, proximity to urban centres and the QE 2 Highway, and availability of water.
The LLPG/566 Group observed that both AltaLink and AESO acknowledged that the Lochend to Langdon portion of the West Corridor passed through an area of high population density. The LLPG/566 Group noted that AltaLink and AESO’s corridor assessments both categorized the residential impact of a Lochend to Langdon route as “most.” Also, the LLPG/566 Group’s planning expert noted that the NID application and siting documents focused on the current situation in the area but ignored future urban development. This party argued that, based on three area structure plans that had been filed and four such plans that were pending or approved, population density in the Lochend to Langdon area would continue to increase.
The LLPG/566 Group tendered expert evidence from a real estate appraiser who testified that various area structure plans and annexation agreements in the Calgary-Airdrie area made extensive future development in that area inevitable. The appraiser indicated that the “area of influence” created by Calgary and by the QE 2 Highway extended to Didsbury. The appraiser noted that agricultural land near Crossfield sold for about $6000 per acre and that a quarter section adjoining Didsbury sold for about $28 000 per acre. The appraiser indicated that agricultural land farther to the east attracted prices in the $1000 to $1500 per acre range. The appraiser also provided evidence suggesting that there would be a negative impact on price for country residential lots located adjacent to transmission lines.
ATCO stated that its 2006 examination of the Central/East Corridor revealed both a feasible route east of Langdon and a feasible route out of Ellerslie to address prior routing concerns for lines originating from Ellerslie. ATCO argued that as a result of these two potential routes, many of the concerns associated with routing out of Ellerslie were mitigated. Hence, ATCO argued that the Central/East Corridor represented a viable transmission corridor alternative. ATCO
27 Exhibit B8 (d). 28 Ibid. 29 Exhibit H2. EUB Decision 2006-114 (December 6, 2006) • 29 Request for Review and Variance of Decision 2005-031
contended that a slightly longer route through the Central/East Corridor had the potential to cross fewer than the approximately 435 parcels impacted by a West Corridor route due to a lower population and less development. Like UPTAG, ATCO challenged AltaLink’s evidence regarding the number of people potentially impacted by a route in the West and Central/East Corridors. ATCO suggested that AltaLink’s use of a 1.6 km notification zone distorted the number of people potentially affected by the Central/East Corridor and did not take into account Ellerslie’s location within the TUC. ATCO asserted that the consultation requirements for a new 500 kV line through the Ellerslie area would involve a few hundred landowners, rather than the thousands alleged by AltaLink.
ATCO asserted that over 80 per cent of a route in the West Corridor would be in areas where land values exceeded $2000 per acre, whereas only one-third of a route within the Central/East Corridor would impact lands with values exceeding $2000 per acre. ATCO also provided evidence demonstrating a definite trend for decreased land values towards the east of the province compared to the West Corridor. It noted that this trend was apparent even when comparing the West Corridor to the Central/East Corridor.
AltaLink disagreed with UPTAG’s assertion that the major evaluative factor for residential impacts was population. It argued that there were many other factors, including routing into Ellerslie, that must be considered when assessing residential impacts. It noted that UPTAG’s argument ignored the fact that people lived in all corridors and that they lived in great density in certain parts of ATCO’s Central/East Corridor. AltaLink noted that residential impacts could only be determined at the detailed routing stage.
AltaLink discounted the concerns raised by UPTAG and ATCO regarding its population assessments for the various corridors. AltaLink asserted that its evidence in this regard was fully consistent with a corridor-level assessment and that a 800 m notification radius was consistent with EUB Directive 028. AltaLink argued that even if notification distances were 200 m for urban centres and 800 m for the rest of the route, 2400 people would need to be notified in the West Corridor, as opposed to about 5475 people in the Central/East Corridor.
AESO summarized its comparison of residential impacts in the following table taken from Exhibit N(4) (a):
30 • EUB Decision 2006-114 (December 6, 2006) Request for Review and Variance of Decision 2005-031
Table 4.4-1 – Corridor Population Density Comparisons West Corridor Alternative Central East Corridor Alternative Corridor Alternative West Corridor NW Calgary to Ellerslie to East Corridor Central Langdon Tofield Area Corridor Corridor Corridor 75% of Genesee 25% of 100% of an 20% of Ellerslie 80% of to Langdon Genesee to Ellerslie to to Langdon Ellerslie to Route Langdon Route Langdon Route Langdon Route Route Residential Impact Least Most Most Most Least Urban centers of 1000 to Rimbey Crossfield, Irricana, Tofield Irricana, 3000 population within the Langdon Langdon Hanna corridor Urban centers of 3000 to Didsbury Chestermere Beaumont, Beaumont Drumheller, 10,000 population within Lacombe, Strathmore, the corridor Chestermere Chestermere Urban centers over 10,000 None Calgary Edmonton, Edmonton, Calgary population bordering or Leduc, Sherwood Park within the corridor Wetaskiwin, Red Deer, Calgary Approximate number of 1700 Greenfield landholders to consult (300 with West 2100 5100 2100 2200 (Excluding those inside Rebuild) town and city boundaries) Estimated number of 100 - 150 30-40 residences within (100 - 120 with (60-90 if south 120 - 200 40 - 50 90 - 100 200 meters of any selected West Rebuild) of Airdrie) route within the corridor
In its Corridor Assessment Summary, AESO stated:
Residential impacts cannot be addressed at the corridor level because specific route locations are unknown. Instead, population density comparisons were used as a proxy.
In general, the Central, NW Calgary to Langdon and Ellerslie to Tofield area corridors present the greatest siting challenges in terms of overall population density and suburban residential subdivisions, particularly in proximity to the major cities of Edmonton and Calgary. The Central Corridor is in proximity to a number of urban centers.30
AESO disagreed with UPTAG’s assertion that the population density of the Central/East Corridor is one or two magnitudes less than the West Corridor. AESO contended that the population density maps filed in the proceeding provided insufficient information to support this conclusion. However, AESO noted that the Central/East Corridor boundaries included the communities of Edmonton and Beaumont in the north and Trochu and Three Hills in the south and suggested that this would cast doubt on its claims regarding higher density in the West Corridor. AESO also referenced ATCO Map 3: Population Density by County. AESO stated that this map clearly demonstrated that population density values for the majority of counties traversed the West, Central, and Central/East Corridors. AESO contended that applying these values to a corridor evaluation would tend to overstate the impacts of a West Corridor.
30 Exhibit N4 (a), pages 20-21. EUB Decision 2006-114 (December 6, 2006) • 31 Request for Review and Variance of Decision 2005-031
AESO argued that UPTAG unfairly downplayed the potential impacts of the line in the area of Ellerslie and Langdon. AESO emphasized that its corridor assessments recognized the gravity of these concerns and the fact that they should not be ignored.
8.3.2 Views of the Review Panel The Review Panel finds that a transmission line within the Central Corridor would comparatively have the greatest residential impacts, and that the residential impacts associated with the West, Central/East, and East Corridors would be roughly similar. In making this determination, the Review Panel considered • population density, • population change, • development potential, • land values, and • transmission line length.
The Review Panel notes that ATCO, AltaLink, and AESO all stated that it is difficult to accurately assess residential impacts from a corridor perspective. The Review Panel finds that AESO’s approach of using population density as a proxy for residential impacts was reasonable. However, the Review Panel is of the view that it is also appropriate to consider impacts on land value and developable land. While the Review Panel notes that AESO considered this factor in its assessment of the three initial corridors,31 UPTAG and the LLPG/566 Group presented additional information regarding land value and development potential within the West Corridor and other corridors that the Board must take into account in its assessment of residential impacts.
The Review Panel finds that the county-level population information filed at the review hearing provides a useful starting point for examining population density. The Review Panel notes that ATCO’s Map 3 demonstrates that population densities tend to be greatest near large cities and along the QE 2 Highway but decline as one moves both east and west from that highway. A review of the population change data provided by AESO32 and UPTAG Maps 2 and 333 shows that these same areas are growing at the fastest rate and that growth drops off and even becomes negative as you move to the eastern side of the province.
Regarding the four corridors, both ATCO’s Map 3 and UPTAG’s Map 4 reflect that the population density for the preponderance of the East Corridor would be markedly less than the population density of the three most western corridors. However, the Review Panel finds that because of the extra length associated with a line in the East Corridor, it is useful to examine the more detailed information provided by ATCO, AltaLink, and AESO in their respective corridor assessments, as supplemented by information arising from evidence and argument. The Review Panel has summarized this information for each of the corridors in the following table.34
31 Exhibit N4 (a), pages 37 and 39. 32 Exhibit N1, Appendix D. 33 Exhibit H8 (d). 34 The Review Panel also included publicly available population information in this table for towns that met the criteria but were not included in filed materials. 32 • EUB Decision 2006-114 (December 6, 2006) Request for Review and Variance of Decision 2005-031
Combined West Centre/East Combined East Centre Corridor Corridor Corridor Corridor Urban centres 1000 Rimby, Crossfield, Tofield, Irricana, Irricana, Langdon Trochu, Langdon to 3000 Langdon Hanna, Langdon Beaumont, Beaumont, Urban centres 3000 Didsbury, Beaumont, Three Drumheller, Ponoka Lacombe, to 10 000 Chestermere Hills Strathmore, Chestermere Chestermere Urban centres over Edmonton, Leduc, Edmonton, Leduc, Edmonton, 10 000 bordering or Calgary, Airdrie Wetaskiwin, Wetaskiwin Sherwood Park within corridor Red Deer, Calgary Approximate number of landholders to consult (excluding 3800 5100 N/A 4300 those inside municipal boundaries) Estimated number of residences within 130-190 120-200 N/A 130-150 200 m of any selected route in corridor *These figures are taken from AESO’s corridor comparison, Exhibit N4 (a).
Regarding land value, the Review Panel finds that ATCO’s Map 2 and UPTAG’s Maps 3, 6, and 7 demonstrate that land values in the three western corridors are markedly higher than in the East Corridor.
The Review Panel also accepts the evidence provided by the LLPG/566 Group that rapid development is occurring within the Lochend to Langdon portion of the West Corridor because of its proximity to Calgary and Airdrie and the QE 2 Highway. The Review Panel further accepts that this development has resulted in rising land values in this area of the province. However, the Review Panel finds that it is reasonable to conclude that similar increases are being experienced in the Ellerslie area at the northern end of the Central/East Corridor. The Review Panel notes in that regard that ATCO’s Map 3 indicates that land values in the vicinity of the Ellerslie substation are greater than $5000 per acre.
The Review Panel finds that the residential impacts associated with routing a 500 kV transmission line out of Ellerslie would be similar, if not greater than, those encountered in the Lochend to Langdon portion of the West Corridor. The Review Panel finds that any line out of Ellerslie must traverse the heavily populated and rapidly growing south Edmonton Area. Further, the Board notes that when examined by Board Counsel, ATCO agreed that the width of the Lochend to Langdon portion of the West Corridor provided greater flexibility to address residential impacts than existed for a route coming out of Ellerslie.
While the Review Panel recognizes ATCO’s evidence that routing choices may be able to mitigate this problem, the Review Panel notes AltaLink’s evidence that similar opportunities exist in the Lochend to Langdon area.
Regarding the evidence provided by Berrien and Associates for ATCO regarding land values on a township basis, the Board notes that this analysis assumed the use of the Edmonton TUC but did not assume the use of the Calgary TUC. Further, the Review Panel notes that it excluded the top two townships of the West Corridor. Finally, the Review Panel observes that the use of sales
EUB Decision 2006-114 (December 6, 2006) • 33 Request for Review and Variance of Decision 2005-031
data from two townships on either side of each corridor could potentially overstate land values for the subject townships in either corridor in locations where the respective boundaries are close to towns or cities. Given these issues, the Review Panel finds it to be more appropriate to rely upon the land value per county included in ATCO’s Map 2. The Review Panel notes in that regard that such an approach is consistent with the EUB Directive 028 requirement for a high- level assessment.
Having regard for all of the above, the Review Panel finds it reasonable to conclude that residential impacts associated with the Central Corridor would be slightly greater than those encountered in other corridors. The Review Panel notes that this corridor includes or is adjacent to the greatest number of cities and towns, including Edmonton, Red Deer, and Calgary, and thus has the potential to have the greatest overall impact on land values and future development. The Review Panel also notes that it requires the most consultation, and potentially has the most residences within 200 m of a route.
The Review Panel finds that the residential impacts associated with the West and East Corridors would be roughly equivalent and slightly less than those in the Central Corridor. The Review Panel notes that both corridors must pass through a highly populated area at either its northern or southern end. In this regard, the Review Panel considers that the impacts on land value and future development associated with each would be roughly similar. The Review Panel acknowledges that the East Corridor includes a greater number of smaller urban centres than the corridors to the west, but considers that the potential for residential impact in this regard is offset by its larger area and the resultant routing flexibility. While the Review Panel acknowledges that a larger proportion of the East Corridor passes through counties with a low population density, by virtue of its longer length, the Review Panel finds that the number of people potentially impacted would roughly be similar to the more heavily populated West Corridor. The Review Panel finds support for this conclusion in the estimates for landowner consultation and of residences within 200 m of a potential transmission route.
The Review Panel finds that the residential impacts associated with ATCO’s Central/East Corridor would be similar to those encountered in the West and East Corridors. Like its eastern counterpart, this corridor is likely to have significant residential impacts associated with its northern origins out of Ellerslie. As noted, the Review Panel believes these impacts to be equivalent to those associated with routing between Lochend and Langdon. The number of smaller urban centres within the Central/East Corridor is also similar to the West Corridor. Finally, the Review Panel notes that under examination by Board Counsel, ATCO testified that the residential impacts associated with the Central/East Corridor would be mid or similar to those in the West Corridor.
8.4 Environmental Impacts 8.4.1 Views of the Parties UPTAG submitted that power line construction would permanently degrade the quality of the environment and recreational and tourism values of the West Corridor. UPTAG suggested that the level of environmental analysis that AltaLink performed regarding the West Corridor was inadequate when compared to that performed by ATCO in its studies of the East Corridor. UPTAG argued that AltaLink did not assess regionally significant areas or municipally designated environmentally significant areas (ESAs).
34 • EUB Decision 2006-114 (December 6, 2006) Request for Review and Variance of Decision 2005-031
UPTAG submitted that the County of Red Deer’s ESA studies indicated that there might be regionally sensitive areas in the West Corridor that would be difficult to avoid, such as the Little Red Deer River/Sandhills riparian area. UPTAG argued that had AltaLink undertaken the same level of environmental analysis as ATCO, the Central/East and East Corridors would be rated least and the West Corridor would be rated mid or most.
UPTAG argued that one of the tenets of environmental equity or justice was that no one group ought to share a disproportionate share of the burdens of development. UPTAG pointed out that some locations in the West Corridor already had two or three 240 kV lines. UPTAG argued that its members ought not to have imposed upon them the social, environmental, and financial costs of another transmission line.
Lavesta presented slides illustrating and describing its concern regarding environmental impacts due to the proposed 500 kV line in the West Corridor. It identified the following areas of concern within the West Corridor:
• 16 ecologically important wetland areas, rolling hills, ancient old-growth boreal forests, prairie grasslands, grassy meadows, and farmland separated by deep valleys, gorges, gullies, streams, rivers creeks, and ponds;
• prominent breeding and nesting grounds for a number of migratory birds;
• breeding and foraging ground for large and small mammals;
• natural habitat for additional valuable wildlife resources, including numerous species of amphibians, reptiles, fish, and insects; and
• rare, exotic, and uncommon plants species.
Lavesta submitted that the West Corridor was a unique and special environment. It emphasized that the West Corridor included many diverse mini ecosystems that were integral to the ecological health of the entire corridor. Lavesta testified that this corridor provided unique recreational environment for residents from surrounding communities and others to enjoy fishing, hunting, and many other seasonal outdoor activities. Lavesta also contended that the West Corridor would provide a wonderful teaching and learning opportunity and aid for both young and old alike. Lavesta submitted that any changes to the corridor would have a devastating effect and a major impact on the whole ecological environment of this unique zone. It asserted that such changes would result in loss of a valuable and precious nonrenewable natural resource.
ATCO alleged that AESO did not accurately state the comparative environmental impacts associated with the respective corridors. ATCO stated that it performed a significant amount of detailed work regarding a potential route within the Central/East Corridor. It stated that the Central/East Corridor could have lesser impacts, or at least a lesser degree of severity of impacts, than the present West Corridor based on the comparative criteria used by AESO.
AltaLink argued that environmental concerns were not unique to the West Corridor. It noted that neither the Central/East nor the East Corridor avoided ESAs. AltaLink stated that it would propose a route that did not cross any internationally, federally, or provincially designated ESAs. AltaLink argued that choosing the East or Central/East Corridor instead of the West Corridor would not have a different effect on environmental issues and land use.
EUB Decision 2006-114 (December 6, 2006) • 35 Request for Review and Variance of Decision 2005-031
AltaLink challenged UPTAG’s reliance upon the notion of environmental equity as a basis for varying or rescinding Decision 2005-031. It stated that environmental equity was not a concept adhered to by Canadian courts or administrative tribunals and argued that it was not a concept that ought to be given weight in the review proceeding.
AESO summarized its comparison of environmental impacts in the following table taken from Exhibit N4 (a):
Table 4.5-1 – Environmental Impact West Corridor Alternative Central East Corridor Alternative Corridor Alternative West Corridor NW Calgary to Ellerslie to Tofield East Corridor Central Corridor Langdon Corridor Area Corridor 75% of Genesee to 25% of Genesee 100% of an 20% of Ellerslie to 80% of Ellerslie to Langdon Route to Langdon Route Ellerslie to Langdon Route Langdon Route Langdon Route Environmental Mid (New) Least Least Least Least impact Lease (Rebuild) Major rivers Red Deer, North None Red Deer None Red Deer, Battle crossed or in Saskatchewan River proximity Incremental impact Moderate impact Little impact Little impact Moderate impact Little impact over existing beyond existing beyond existing beyond existing beyond existing beyond existing development developments and developments agricultural developments agricultural usage agricultural usage usage Some habitat may Few habitat Some waterfowl Some waterfowl Some waterfowl be affected in concerns (mostly habitat may be habitat may be habitat may be forest areas SW of country residential affected near affected (Cooking, affected (near Pigeon Lake (e.g., or agricultural wetland areas Joseph, and Battle and Red Wildlife, wetland or Town Creek) or lands). Routing west of Cooking Beaverhill Lakes, Deer Rivers, and waterfowl habitat near wetland areas may avoid. Lake and Bittern and Ministik Lakes Wavy, Marion, Lake. Routing bird sanctuaries). Sullivan and may avoid. Routing may Gough Lakes). avoid. Routing may avoid Estimated native None identified None identified Less than 10 km None Approx. 35 km prairie vegetation (2%) (10%) on any given route within the corridor Estimated forested Approx. 35 km None Approx. 15 km Approx. 8 km None land on any given (15%) (5%) (8%) route within the corridor
AESO referred to a map of ESAs (Exhibit N1, Appendix C) and pointed out that ATCO’s alternative included extensive ESAs. Thus, AESO assigned a “mid” ranking to the Central/East Corridor in its updated corridor impact comparison and a “least” ranking for the West Corridor area.
AESO maintained that many of issues raised by UPTAG would be properly addressed in the environmental impact assessment (EIA) that would be filed with the 500 kV facility application.
36 • EUB Decision 2006-114 (December 6, 2006) Request for Review and Variance of Decision 2005-031
8.4.2 Views of the Review Panel The Review Panel finds that the environmental impacts associated with the East Corridor are potentially the greatest and that environmental impacts in the West, Central, and Central/East corridors would be similar. In making this determination, the Review Panel considered the following factors:
• major rivers crossed or in proximity,
• wildlife, wetland, or waterfowl habitat,
• estimated native prairie associated with a potential route,
• estimated forest land on any given route within a corridor,
• incremental impact over existing development,
• amount of ESAs within a corridor, and
• line length.
The Review Panel notes that a route in any of the four corridors would cross at least one river and would have similar habitat concerns.35 The West, Central, and East Corridor each crosses small areas (25-35 km) of either forested land or native prairie or a combination of the two. The Review Panel also accepts AESO’s evidence that the West Corridor would have slightly higher incremental impact than the Central and East Corridors. While ATCO did not provide the same level of information regarding the Central/East Corridor, the Review Panel accepts ATCO’s evidence that the environmental impact associated with the Central/East Corridor would be the same as the West Corridor. The Review Panel observes that the Central, Central/East, and East Corridors encounter a proportionately similar amount of ESAs and finds that the West Corridor encounters far fewer ESAs than the other corridors.36 Having regard for all of the foregoing, the Review Panel finds that the environmental impacts associated with each corridor would be roughly similar.
However, the Review Panel considers that it must also have regard for the additional environmental impacts associated with constructing and maintaining up to an additional 100 km of line that may be associated with a 500 kV transmission line in the East Corridor. In the Review Panel’s view, the impacts associated with this additional length warrant a finding that the East Corridor would be subject to greater environmental impact than the other corridors.
The Review Panel notes that a number of parties, including Lavesta, raised site-specific environmental concerns regarding discrete areas within the West Corridor. The Review Panel finds that consideration of such site-specific concerns is beyond its mandate to determine the high-level environmental, landowner, and agricultural impacts associated with transmission corridors. However, the Review Panel observes that such concerns may properly be considered when a final route is chosen and the associated impacts have been identified. The Review Panel notes that proponents of 500 kV transmission projects require approvals from both Alberta Environment and the EUB. In that regard, a comprehensive EIA must be prepared and will be scrutinized by both the EUB and Alberta Environment as part of their regulatory approval processes.
35 A route in the Central/East Corridor would cross the Red Deer River and could create waterfowl habitat concerns near wetlands near Bittern Lake and possibly also at Buffalo Lake and Red Deer Lake. 36 Exhibit N1, Appendix C. EUB Decision 2006-114 (December 6, 2006) • 37 Request for Review and Variance of Decision 2005-031
The Review Panel finds that UPTAG’s concerns regarding the completeness of AltaLink’s environmental assessment to be unfounded. In that regard, the Review Panel notes its conclusion in Section 7.2 that the information considered by AltaLink and ATCO in their respective reports was similar and that AESO took reasonable steps to ensure that its conclusions were based on equivalent information. The Review Panel notes that both ATCO and AltaLink identified environmentally sensitive areas that would require avoidance at the routing level. ATCO identified such areas in its brief discussion of its corridors,37 while AltaLink included that information in two detailed maps of both routes it studied, showing protected areas, ESAs, and candidate site and public nominations for special areas.38 The Review Panel also notes that both TFOs also considered the amount of forested land and native prairie in the corridors examined.
Finally, regarding UPTAG’s arguments of environmental equity, the Review Panel considers that this is but one of numerous factors that it must consider when determining whether further transmission development in the West Corridor is in the public interest. In that regard, the Review Panel agrees that it must consider the discrete impacts that would be imposed upon landowners within each corridor and weigh those impacts against the potential benefits that may accrue to the greater population of the province.
8.5 Electrical Considerations 8.5.1 Views of the Parties UPTAG retained Energy Consultants International Inc. (ECI) as an expert witness on transmission planning issues. ECI observed that the West Corridor was currently the backbone of the N-S transmission system, providing over 50 per cent of the electricity to Calgary and southern Alberta. ECI testified that locating the proposed 500 kV line adjacent to existing 240 kV transmission lines in the West Corridor would expose a significant portion of the power being transmitted between Edmonton and Calgary to potential damage through a single extreme event. ECI noted the impact of severe weather events in other jurisdictions, including the ice storm in Quebec, which took out transmission lines in multiple corridors. ECI also noted that that such a concentration of transmission lines in close proximity gave rise to security issues and made the lines more vulnerable to vandalism or sabotage.
ECI noted that the East Corridor was five to six times wider than the West Corridor and for most of its length parallelled at most only one 240 kV line. ECI contended that the East Corridor may provide greater flexibility for routing opportunities, resulting in a more secure operational system. ECI further submitted that considering reliability, it might be practical to stage the facilities in an isolated corridor other than the West Corridor.
ECI testified that the thinking of transmission planners was changing and there was more concern now about the concentration of multiple lines in a single corridor. In that regard, ECI noted that Quebec placed a limit on the maximum power level that could be transmitted down a single corridor, B.C. no longer located more than one line in one valley, and Manitoba was studying the appropriate geographic spacing required.
ECI suggested that this issue required further consideration by AESO and the Board. It submitted that AESO had identified this as a factor in its reliability assessment but ECI was unable to determine how much weight AESO gave to this factor in arriving at the assessment conclusion.
37 Exhibit N4 (c), pages 29-30. 38 Exhibit N4 (b) maps SA3 and SA4. 38 • EUB Decision 2006-114 (December 6, 2006) Request for Review and Variance of Decision 2005-031
ECI recommended that consideration should be given to additional concepts that took into account the advantages of the greater width of the corridor and less proximity to existing 240 kV facilities.
UPTAG acknowledged that AESO conducted a contingency assessment of the West Corridor in response to the undertaking requested by Board Counsel. UPTAG alleged that this assessment was incomplete and that further work was required to provide a comparison of the effects of a D7 event39 that included the proposed 500 kV line in each of the corridors. UPTAG submitted that the Board should direct AESO to fully assess the risk associated with having such a large proportion of bulk transmission located within a single corridor and determine the geographic separation required to mitigate for a D7 contingency.
UPTAG also considered the vulnerability of the West Corridor to Category C40 events as a second reliability issue. In support of this position, UPTAG cited AESO’s concession that a double-circuit line from Lochend to Langdon, if built, would provide inferior operational reliability in the long run. UPTAG argued that parallelling two lines in another corridor would be different from concentrating the bulk of N-S transmission in a single corridor. Regarding AESO’s argument that the proposed 500 kV line might not be parallel with existing 240 kV lines in the West Corridor, UPTAG pointed out that AltaLink confirmed that it had selected a parallel route.
UPTAG submitted that it had carefully reviewed Decision 2005-031 and the NID application and argued that the Board did not determine that there was a need for terminating the proposed 500 kV line at Genesee or at the proposed Lochend substation. UPTAG argued that the NID application clearly stated that Concept V did not include a Lochend substation and noted AESO’s testimony at the original NID hearing that that a Lochend substation was not a necessary component of Concept V. UPTAG also noted AESO’s statement that Concept V could be located in any of the three corridors.41
As to AESO’s argument that UPTAG downplayed the impacts of the Central/East Corridor on Ellerslie, UPTAG submitted that the West Corridor had included the north portion of the City of Calgary and, like Ellerslie, a TUC. As such, all proposed corridors would be similar in terms of having included a portion of a major city.
UPTAG submitted that one of the disadvantages of the West Corridor was that a route in that corridor would be located away from the province’s rapidly developing industrial area, primarily in the east, in areas such as Fort Saskatchewan, Joffre, and Fort McMurray. UPTAG argued that the costs, including the long-term economic impacts and lost opportunity costs resulting from locating transmission facilities far away from planned industrial development, had not been assessed by AESO.
39 According to Western Electricity Coordinating Council/North American Electric Reliability Council (WECC/NERC) Planning Standards, Category D events are extreme events resulting in two or more (multiple) elements removed or cascading out of service. Category D7 events are extreme events resulting in the loss of all transmission lines on a common right-of-way. 40 According to WECC/NERC Planning Standards, Category C events are events resulting in the loss of two or more (multiple) elements. 41 NID Application 1346298 Hearing Transcript Volume 5, pages 1155, lines 04-12. EUB Decision 2006-114 (December 6, 2006) • 39 Request for Review and Variance of Decision 2005-031
UPTAG submitted that since the Board approved the NID application, a major change had occurred due to AESO’s intention to re-examine whether it would proceed with the rebuild of a 240 kV line in the West Corridor or other options due to the concern about concentrating transmission in a single corridor. UPTAG argued that this would be a major change because the Board’s conclusion that Concept V was in the public interest from a routing perspective was based on the understanding that Concept V would require only one new right-of-way initially and would use an existing corridor in the long term. As such, UPTAG suggested that a new evaluation of all the concepts developed by AESO would be required.
UPTAG submitted that Concept V would not coordinate right-of-way usage for future transmission lines required for potential cogeneration development in the Fort McMurray area. In this regard, UPTAG made references to both a regulated and nonregulated transmission line in an eastern corridor, as described in AESO’s 20-year [2005-2024] Transmission System Outlook document, and a high-voltage direct current (HVDC) line in the east announced by Northern Lights, a privately owned company. UPTAG submitted that significant time, money, and effort could be saved by acquiring one new right-of-way now for both the new 500 kV N-S line and one of the new lines from Dover to Langdon, given their parallel timing. UPTAG further submitted that other benefits associated with right-of-way coordination included acquiring a new right-of-way in the east before further development decreased the ability to acquire one out of Ellerslie and obviating the need to acquire another wider right-of-way in the West Corridor while preserving the option of using the existing right-of-way to rebuild one of the existing lines.
UPTAG suggested that Concept II in the NID would approximate this option, which would have benefits, according to AESO’s evaluation, very similar to those of Concept V. UPTAG stated that the benefits of Concept II might now exceed Concept V because of AESO’s inclination to re-evaluate the impact of concentrating the bulk of critical transmission in the south of the Keephills to Calgary path in one corridor.
Based on the above, UPTAG submitted that a new evaluation of the concepts would likely show a 500 kV line in the east, with the option of a future rebuild in the west, to be far superior in terms of the public interest.
The LLPG/566 Group noted that examination of the NID revealed that the Lochend substation was not forecast to be required until as late as 2028 or 2030. The LLPG/566 Group pointed out that the stated reason for the Lochend substation had always been to enhance supply into northwest Calgary. However, the LLPG/566 Group argued that AESO had acknowledged that a further study would be conducted on the Calgary supply situation some time in the future. The LLPG/566 Group further argued that there was no evidence that described how a substation located to the west of Crossfield would solve the problem of enhancement of supply into northwest Calgary or whether other system enhancements implemented by 2028 could accomplish the same goal.
With respect to terminating the proposed line at Ellerslie, the LLPG/566 Group submitted that the very fact that ATCO and AESO took different positions on this issue suggested that further study was warranted prior to a comprehensive routing hearing.
ATCO stated that should a route in the West Corridor be approved, the result would be three critical bulk transmission lines next to each other in the same right-of-way between the Wabamun area and Benalto, joined by a fourth line between Benalto and the Calgary area.
40 • EUB Decision 2006-114 (December 6, 2006) Request for Review and Variance of Decision 2005-031
ATCO suggested that a natural disaster could easily destroy a portion of all four lines simultaneously, resulting in a total interruption for hours subsequent to the event, followed by power shortages for several days until the lines could be repaired. In ATCO’s view, the reliability and integrity of the provincial grid would be unnecessarily compromised unless the subject and future 500 kV additions to the transmission backbone were to be located at a geographic distance from the common right-of-way of existing 240 kV lines. ATCO submitted that this issue was not fully addressed by AESO during the NID proceedings, since the need examination focused on the general characteristics of the corridor options.
ATCO submitted that any new transmission line proposed for the West Corridor was virtually preordained to be built immediately adjacent to the existing lines. ATCO pointed out that AltaLink proposed parallelling the new 500 kV line with the existing 240 kV lines in the West Corridor.
ATCO submitted that concerns with respect to extreme weather events should not be dismissed or accepted without a detailed examination and understanding of the consequences. ATCO submitted that AESO could and should perform the necessary studies and work, particularly when portions of the line would be located in areas known for the type of events that have been experienced in other parts of the country. ATCO further suggested that it would be prudent for AESO to take the results of these studies into account in forming its recommendation on the appropriate location of the subject facilities.
ATCO further submitted that the double-circuit Lochend to Langdon portion of the proposed 500 kV line appeared to indicate a potential to place another 500 kV line in or near the common right-of-way. ATCO asserted that this would further exacerbate the reduced system reliability. ATCO submitted that grid reliability and route diversity should be important considerations in the EUB’s review of the suitability of the West Corridor and that the benefits associated with such diversity further justified a more detailed examination of the Central/East Corridor option brought forward by ATCO.
ATCO referred to a February 1980 decision of the ERCB that dealt with two 500 kV transmission lines from Keephills to Ellerslie. ATCO noted the Board’s determination that the risk to the system of locating the facilities in a common utility corridor, while low, was of sufficient concern to require separation of the two lines. ATCO submitted that the present situation would be even more extreme, given the length of the proposed 500 kV line and the proportion of backbone transmission facilities that would be located in the West Corridor should that corridor be approved.
ATCO proposed that its Central/East Corridor could achieve a material benefit through route diversity. ATCO clarified that it did not contemplate a 500 kV line in close proximity to existing 240 kV lines in its Central/East Corridor. ATCO contended that there were significant benefits associated with separating the subject 500 kV transmission line from other “backbone” transmission lines by placing it in a geographically distinct location.
ATCO submitted that the Western Electricity Coordinating Council/North American Electric Reliability Council (WECC/NERC) reliability criteria required the system operator to examine and understand the extent to which system conditions could deteriorate as a result of Category D events, such as the loss of three or more transmission circuits in a common right-of-way. ATCO argued that while AESO may have recognized the issues pertaining to Category D events, it did
EUB Decision 2006-114 (December 6, 2006) • 41 Request for Review and Variance of Decision 2005-031
not pursue a detailed and thorough analysis at the prior proceeding and had not done so since. ATCO submitted that it would be of assistance to all parties in this proceeding if the Board were to direct AESO to undertake these studies and present its findings as part of the review hearing. ATCO stated that preliminary results from a study it performed indicated that such an undertaking would be justified.
ATCO challenged AESO’s assertion that it had conducted sufficient Category D analysis and suggested that the limited analysis performed by AESO appeared to have been done without the benefit of dynamic modelling. ATCO stated that according to its experienced judgement, the analysis was inadequate and the assumptions made by AESO should not be relied upon without the necessary dynamic studies to check them. ATCO suggested that the system impacts and amount of load lost could be much more severe. ATCO contended that its concerns regarding AESO’s methodology and lack of supporting study also applied to the Category C analysis AESO filed in the NID.
ATCO contended that AESO failed to provide sufficient evidence to support its assumption that system operation could be managed to avoid any further loss of elements or load 30 seconds after the occurrence of a Category D7 event. ATCO criticized AESO’s failure to provide any load flow results to demonstrate the results and effectiveness of the possible operator-initiated actions. ATCO also contended that AESO made an error related to the status of the southern 240 kV capacitor in its analysis. ATCO noted that AESO appeared to rely on prompt and precise operator (human) intervention. ATCO argued that human intervention could be too slow and error prone, because both operators and equipment might not react correctly to such a rare event.
ATCO argued that AESO should perform adequate studies and that if the studies have been done, AESO should be required to place them before the Board and parties to be examined and tested. ATCO also criticized AESO for dismissing route diversity arguments based on the remoteness of any occurrence that would have such severe consequences. ATCO also criticized AESO’s positions as inconsistent and unbalanced, since it attempted to play down the reliability concerns of the West Corridor caused by a lack of route diversity, while at the same time suggesting that reliability concerns associated with the Central/East Corridor provided a justification for rejecting this alternative.
ATCO contended that there seemed to be no evidence supporting the need for a third line out of Genesee. ATCO submitted that it was not demonstrated that additional generation, beyond what had been contemplated, would be built in this area. ATCO argued that the capability to handle an additional unit at Genesee and another unit at Keephills would exist regardless of whether the proposed line would be terminated at Ellerslie or Genesee.
With respect to AltaLink’s argument that an additional line between Genesee and Ellerslie would be required if the new 500 kV line terminated at Ellerslie, ATCO pointed out that nowhere in the record had AESO stated that the third line would be required for other concepts where the respective new 500 kV lines did not terminate at Genesee. On the other hand, ATCO observed that it was AESO’s position that if the 500 kV line terminated at Ellerslie, it believed that it would be possible to mitigate the consequences of relevant Category C events by special protection systems.
With respect to exposure to Category D outage events, ATCO submitted that AESO had not identified or elaborated on the need to address Category D events for a line originating at
42 • EUB Decision 2006-114 (December 6, 2006) Request for Review and Variance of Decision 2005-031
Ellerslie, or provided support for this statement. ATCO stated that it was not aware of any such events and concluded that they did not exist.
ATCO argued that AESO failed to provide any evidence in the NID application or in the review hearing to support the need for the Lochend substation to justify it as a critical consideration in the evaluation of corridor or route options. ATCO argued that no load forecasts had been performed to support the need for the Lochend substation. ATCO therefore cautioned the Review Panel not to be influenced when the need had not been clearly demonstrated. In ATCO’s view, the timing, need, and configuration of future substation support for the Calgary load were uncertain and facilitating the shortest possible connection to a possible substation at Lochend did not qualify as a key consideration in the present corridor selection. ATCO further stated that none of the other corridor options precluded a connection to the Lochend area.
ATCO submitted that general line routing criteria for a bulk transmission system normally would take into account the benefit of locating such a facility near areas of demonstrated and potential industrial load development. ATCO submitted that the West Corridor had not seen, nor was it forecast to see, industrial load growth on a significant scale. However, ATCO noted that significant growth had been experienced in industrial enterprises east of the QE 2 Highway. These developments ranged from the oil sands in Fort McMurray to the in situ heavy oil projects in Cold Lake, the refining and upgrading complexes in Fort Saskatchewan, the petrochemical plants in the Joffre area, and numerous other undertakings in between. ATCO further submitted that many of the existing industrial developments included cogeneration and the new developments currently being discussed would potentially have significantly more generation, which could result in substantial amounts of surplus energy that would need an outlet to the market.
ATCO argued that so far bulk transmission support had been added on the west side of the highway principally to connect the Wabamun area generation to the southern load centred in the Calgary area. ATCO submitted that considerable public interest benefits could be derived from an eastern route, particularly in terms of proximity to industrial development.
EPCOR noted that neither ATCO nor UPTAG’s expert, ECI, stated that the West Corridor should be rejected for reliability concerns and observed that the common position of both was that the issue was worthy of further study and consideration. EPCOR submitted that ATCO had no concerns about the West Corridor until the review applications were filed, and it saw them as opening a possible opportunity to “play a role” in the project. As such, EPCOR maintained that all of ATCO’s positions, including those respecting route diversity and reliability, should be viewed against this backdrop.
EPCOR submitted that terminating the line at Genesee would be essential and argued that abandoning the West Corridor would have serious consequences regarding operational reliability. EPCOR cited AESO’s and AltaLink’s submissions to support its position. EPCOR concluded that the requirement for an additional transmission line terminating at Genesee should be given substantial weight and recognized as a factor that militated strongly in favour of the suitability of the West Corridor.
Calgary submitted that the route diversity issue raised at the review hearing was the only issue that could potentially be considered a “show stopper.” Calgary noted that while ATCO criticized AESO for making unsupported conclusions on diversity issues, ATCO had relied only upon
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anecdotal evidence of problems in other jurisdictions and its “experienced judgement” to make its submissions.
Calgary submitted that the questions for the Board would be, first, whether ATCO’s comments on AESO’s approach were valid and, second, if so, whether the detailed dynamic system modelling suggested by ATCO would shed any further light on the issue to enable the Board to make a decision in the public interest. Calgary submitted that it would not offer the Board further comments as to how the Board should proceed to answer the two questions raised above, other than to point out the fact that AESO had the statutory duty to provide for a safe, reliable, and economic transmission system.
AltaLink argued that ATCO’s reliability concerns were without basis. AltaLink observed that ATCO agreed that there were approximately 200 km of 500 kV line in service in Alberta for 20 years and that there had not been a single failure of a 500 kV transmission tower in Alberta. AltaLink also noted that numerous corridors with multiple circuits within them already existed in the Alberta power system, including the region where ATCO operated. AltaLink pointed out that there are three 240 kV lines in one corridor from the Sheerness generating station, which ATCO agreed were important to the system. AltaLink argued that notwithstanding ATCO’s concerns about reliability in this proceeding, ATCO had not raised any concerns with AESO respecting these multiple lines from the Sheerness station.
AltaLink submitted that connecting Genesee, Lochend, and Langdon was essential and only the West Corridor would be able to connect these points. AltaLink argued that a transmission upgrade in the Central, Central/East, and East, Corridors could not meet this fundamental requirement without significant and unnecessary expense and would also give rise to extremely challenging routing issues.
AltaLink submitted that UPTAG, the LLPG/566 Group, and ATCO ignored the fact that East or ATCO’s Central/East Corridor routing would require transmitting power between the Genesee region and Ellerslie. AltaLink argued that there were two fundamental technical problems with the East and Central/East Corridors. First, it asserted that routing to Ellerslie within the City of Edmonton would be very challenging. Second, the Central East and East Corridors both would require a line from Ellerslie to Genesee. AltaLink stated that even if an East Corridor route to Ellerslie were accomplished, a line would still be required to span Ellerslie and Genesee to satisfy one of the fundamental technical requirements to have three lines terminate at Genesee. AltaLink argued that concepts that did not terminate at Genesee would raise concerns respecting a number of Category C and D events with severe system impacts. AltaLink further emphasized that simply upgrading an existing line between Ellerslie and Genesee would be insufficient to meet technical requirements and would not in itself make East and Central/East Corridor routing viable.
Regarding the Lochend site, AltaLink explained that the Lochend to Langdon portion of Concept V could accommodate a second 240/500 kV source to reinforce supply capability into Calgary and its surrounding area in the long term. AltaLink stated that a Lochend source station close to the existing 240 kV lines would offer greater flexibility to the west side of Calgary. AltaLink considered the Lochend to Langdon area an important place to locate a 500 kV line, especially considering the future development and the public interest in the Calgary region by having adequate power supply.
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AltaLink submitted that the record of the review hearing demonstrated that the West Corridor would be superior to other corridors for reasons including
• planning flexibility and future ability to meet southern Alberta power needs,
• moving power from “west to east,”
• providing an additional line into Genesee,
• flexibility for capacity out of the Keephills/Genesee area, and
• capital cost requirements, especially related to line length.
AltaLink stated that the foregoing factors, coupled with the other factors addressed in Decision 2005-031, would ensure that the West Corridor was the best corridor choice.
AESO summarized its comparison of electrical considerations in the following table taken from Exhibit N4 (a):
Table 4.7-1 – Electrical Considerations West Corridor Alternative Central Corridor East Corridor Alternative Alternative West Corridor NW Calgary to Ellerslie to Tofield East Corridor Central Corridor Langdon Corridor Area Corridor 75% of Genesee 25% of Genesee 100% of an 20% of Ellerslie to 80% of Ellerslie to Langdon to Langdon Route Ellerslie to Langdon Route to Langdon Route Langdon Route Route Electrical Mid Mid Mid Mid Mid considerations Connects More suitable for generation from future circuits Lake Wabamun north from Ease of area. Less Provides egress Edmonton area Connects connection to suitable for future from Ellerslie. Connects Ellerslie or south from Langdon to West future circuits north Connects Ellerslie to East Corridor Calgary area. Corridor developments from Edmonton and Langdon Less suitable for area or south generation from from Calgary the Lake area. Wabamun area Circuit length Circuit length exposure Length Shortest circuit exposure Shortest circuit Longer circuit comparable to exposure length exposure comparable to length exposure length exposure NW Calgary to Ellerslie to Tofield Langdon corridor Slightly more difficult for Greenfield. Access Not difficult Not difficult Not difficult Not difficult
Not difficult for rebuild.
AESO did not agree with ATCO’s view that adding a 500 kV transmission line to the backbone of the Alberta Interconnected Electric System (AIES) in the West Corridor would unnecessarily compromise the reliability and integrity of Alberta’s transmission grid. AESO stated that possible wide geographic separation of the proposed 500 kV line from the existing 240 kV lines would not be necessary for reliable operation of the AIES. AESO stated that the impact of losing
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all transmission lines within a common right-of-way could be adequately mitigated through the use of protective relaying.
AESO explained that the loss of all transmission lines on a common right-of-way would be considered extremely rare and had been designated as a Category D event by WECC/NERC. AESO stated that it was expected to select the critical Category D events, evaluate them to assess the risks and consequences, and balance these against the cost of mitigation. AESO indicated that because such events were extremely rare, low-cost mitigation measures such as safety net protections and/or special protection systems were the most prudent means of reducing, but not necessarily eliminating, all of the consequences of such events. AESO further indicated that in the event of the loss of all lines within a single right-of-way in Alberta, the consequences could be minimized by the existing “Under Voltage Load Shed” (UVLS) protection scheme for southern Alberta. AESO further indicated that a special protection system to directly trip northern generation (known as the “Generation Remedial Action Scheme”, or GRAS) might also be considered in the future to enhance the mitigation of a Category D event. AESO provided an outline of the predicted sequence of events for UVLS and GRAS protections respectively to explain how protection systems could respond to such an event.
AESO pointed out that ATCO did not say that locating a 500 kV line in the West Corridor would in fact be a problem. Rather, it noted that ATCO simply wanted AESO to study the issue to ensure that stakeholders could understand the information and to verify that the relevant mitigation systems would be in place. AESO stated that it had done so, both in the context of a corridor comparison with respect to Category C events in the NID application and in this review process for Category D events by providing the results of the power system analysis of two such events.
AESO argued that the issue of route diversity would not be unique to the West Corridor. AESO pointed out that ATCO contemplated placing a 500 kV line in proximity to existing 240 kV facilities in the Central/East Corridor both to the west of Wetaskiwin and between Red Deer and Langdon. AESO noted that at the time of the review hearing, the route for the proposed line had not yet been determined and would only be decided during the HEEA facility application stage of the process.
AESO submitted that its analysis had been quantified for all of the items cited by ATCO, both for the Category C analysis in the NID application and the Category D events modelled in the review hearing. In response to ATCO’s concerns regarding AESO’s analysis on Category C and D events, AESO maintained that ATCO provided no evidentiary basis for its position. With respect to ATCO’s claim that AESO’s analysis appeared to have been done without the benefit of dynamic modelling, AESO assured the Board that the analysis summaries provided were the result of dynamic simulations. AESO submitted that an experienced observer would recognize this, given that the modelling of what was described in the event sequences would be incapable of being undertaken in any other way.
In response to ATCO’s assertion that the post-30-second-period response lacked any evidence to support the assumption that the system operation could be managed to avoid any further loss of elements or load, AESO submitted that evidence was provided. It pointed out that the power flow drawings were a snapshot of the system loading condition 30 seconds after the initiation of the D7 event. AESO stated that an experienced observer would know that the extent to which further immediate operator action would be required could be inferred from the transmission
46 • EUB Decision 2006-114 (December 6, 2006) Request for Review and Variance of Decision 2005-031
system overloads remaining on the system. AESO also explained that the southern 240 kV capacitor banks were in service prior to the event and ATCO was wrong in suggesting the error on the status of theses capacitors in AESO’s analysis.
AESO noted that UPTAG’s assessment was based on the assumption that the 500 kV line would be located in the same right-of-way as that of the existing 240 kV lines in the West Corridor. AESO emphasized that the final route for the line would be determined in a transmission facility application made under the HEEA. AESO also pointed out that the use of a common right-of- way could occur in any of the corridor alternatives.
AESO asserted that UPTAG had misquoted the WECC planning criterion where it is stated that a category D7 event concerns the loss of all transmission lines “in a single corridor” AESO clarified that the criterion instead refers to the loss of all transmission lines “on a common right- of-way.”
With respect to UPTAG’s suggestion to parallel this 500 kV line with either the potential Northern Lights HVDC line or the Dover-Langdon line mentioned in AESO’s 20-year [2005- 2024] Transmission System Outlook document, AESO noted the inconsistency in UPTAG’s argument of being willing to accept two parallel major lines (500 kV/500 kV or 500 kV/HVDC) if they are located in the east, but not if they are located in the west.
AESO submitted that UPTAG did not appreciate the issues of interconnecting additional generation to the Genesee-Keephills system or support into Calgary from Lochend. AESO stated that UPTAG overlooked the fact that upgrades to Genesee units were cancelled due to lack of necessary additional transmission capacity out of the Genesee substation.
AESO argued that UPTAG was wrong in asserting that “Concept V did not include a Lochend substation.” AESO explained that Concept V includes Lochend (by 2017), but it may be deferred by other transmission enhancements.
AESO clarified that when it stated that Concept V was “the same” in any corridor, there were some qualifications made: it retained the Genesee-Langdon termination points and the prospect of a Lochend reinforcement point into northwest Calgary. AESO submitted that a complete reference to the original hearing transcript shows that Concept V could not be interpreted to include an Ellerslie-Langdon transmission line in the East or Central Corridors. AESO clarified that if moving outside of that preferred corridor (but retaining the Genesee-Langdon terminations), the future flexibility of the Lochend substation could be lost.
AESO also indicated that UPTAG was incorrect in asserting that the Board did not find or even consider either the “need” for a line that would be terminated at Genesee or a Lochend substation. AESO argued that it was clear that the approved Concept V included a 500 kV line from Genesee to Langdon utilizing the West Corridor and facilitating a future Lochend substation.
AESO stated that the issue of proximity to industrial development was not raised by ATCO or any party in the original NID hearing proceeding, nor did this issue warrant a variance of Decision 2005-031. AESO argued that ATCO’s argument ignored the strong potential development of generation in the Lake Wabamun area. In support of its position, AESO pointed out that EPCOR and TransAlta had been pursuing project development of the third unit at
EUB Decision 2006-114 (December 6, 2006) • 47 Request for Review and Variance of Decision 2005-031
Keephills and there existed potential for a number of other unit additions to both the Keephills and Genesee plants.
AESO observed that ATCO’s Central/East Corridor would not run through any of the areas it mentioned as the development areas, nor would it run through the Lochend area to provide the basis for support into northwest Calgary. As for growth potential in the Joffre area, AESO submitted that there was no evidence concerning any planned or proposed industrial load growth there and that the West Corridor option would not preclude providing reinforcement to the Joffre area from another location.
With respect to the Central/East Corridor, AESO submitted that it closely resembled either or both of Concepts I and II as described in the NID application, and as such it shared the same operational reliability deficiencies as Concepts I and II. AESO listed the following deficiencies of these concepts in comparison with Concept V:
• These concepts would have a lower level of operational reliability. Concepts that do not terminate at Genesee raise concerns as to a number of Category C and D events with severe system impacts. These events require large amounts of load shedding (in the order of 1100 to 1300 MW), as well as generation curtailments of over 500 MW in order to maintain system integrity.
• The net cost of the full development of Concepts I and II would be $83 million and $86 million respectively higher than that of the full development of Concept V. The cost of pursuing ATCO’s proposal would be similar to the cost of Concept II.
• Concepts I and II increase peak system losses by 30 MW compared to Concept V.
• Concept V provides more flexibility for future alternatives than do Concepts I and II. Since Concepts I and II could not accommodate more than two additional generating units in the Lake Wabamun area, with the first N-S line terminating at Ellerslie, it locks the long-term development plan more tightly into requiring the second line to originate at either Keephills or Genesee. Concept V allows the possibility for a broad range of alternatives for future flexibility, such as rebuilding existing N-S 240 kV lines to 500 kV (Concept V); HVDC or 500 kV AC from Fort McMurray to Calgary; 500 kV to Calgary on an eastern route originating at Ellerslie or at Fort Saskatchewan; and 500 kV north from the Edmonton area and then west, connecting Alberta to the BC Hydro 500 kV grid to create an alternate path through the BC Hydro system to supply southern Alberta.
AESO did not believe that a transmission development in ATCO’s proposed corridor would be capable of delivering the same benefits as those associated with Concept V. AESO submitted that even at its highest and best, the characteristics of the Central/East Corridor were not significantly different from those of the West Corridor.
Regarding UPTAG’s assertion that AESO no longer intended to place a second line within the West Corridor, AESO stated that it had never indicated in the NID application that it would not examine other alternatives and it had not applied for approval of the completely developed Concept V (e.g., approval of a second 500 kV transmission line as a rebuild).
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Regarding the Northern Lights project and the associated concerns raised by UPTAG, AESO submitted that it would be a merchant facility which might or might not proceed, based on business interests of the developer. With respect to its 20-year [2005-2024] Transmission System Outlook document, AESO submitted that it had assessed a broad range of scenarios, only some of which had included development of Dover to Langdon transmission lines.
AESO submitted that UPTAG’s suggestion to build a first 500 kV circuit in the east, so that a second 500 kV circuit might be built as a rebuild in the west, ignored the immediate requirement to provide additional capacity from Genesee and removed any flexibility related to the second circuit by not addressing the Lochend requirement now.
8.5.2 Views of the Review Panel The Review Panel finds that the four corridor alternatives are similar from the perspective of electrical considerations. The Board considered the following factors in making this determination:
• separation of circuits (route diversity) for reliability,
• interconnection points and operational reliability,
• ease of connection to future load and generation, and
• proximity to future substations.
The Review Panel understands that the route diversity concerns of interested parties relate specifically to the potential for the loss of a number of proximally located transmission lines, either within a common right-of-way or within the broader West Corridor, due to an extreme weather event, vandalism, or terrorism. Such an event has been referred to by parties to the review hearing as a Category D7 event as is defined by WECC and NERC.
The Review Panel considers that Section 8(1) of the Transmission Regulation is relevant to this issue. Section 8 states in part: 8(1) In making rules under section 20 of the Act, and in exercising its duties under section 17 of the Act, the ISO must
(a) plan a transmission system that satisfies reliability standards,42 unless ISO decides that to do so would not provide for a safe, reliable or efficient transmission system
(b) ensure that the transmission facilities adhere to reliability standards.
The Review Panel finds that the above subsections clearly delineate AESO’s obligations in both stages of the new transmission approval process. When preparing a Section 34 NID application, AESO is obliged to develop a preferred transmission option that satisfies reliability standards to the degree possible at that stage of development. When an application for a specific transmission facility is proposed by a TFO, AESO must ensure that the proposed facility adheres to reliability standards, including reliability standards related to Category D7 contingencies that arise as a result of routing decisions made after the approval of a Section 34 NID application.
42 “Reliability standards” is defined in the Transmission Regulation to mean “reliability standards, agreements, criteria and directives of the Western Electric Coordinating Council (WECC) and the North American Electric Reliability Council (NERC), or their successor organizations, and reliability standards, agreements, criteria or directives of any similar entity recognized by AESO.” EUB Decision 2006-114 (December 6, 2006) • 49 Request for Review and Variance of Decision 2005-031
The Review Panel accepts that all of the proposed corridors include sufficient area to allow for appropriate route diversity but notes that because of their greater area, particularly between Red Deer and Crossfield, the Central, Central/East, and East Corridors would provide more routing flexibility than would the West Corridor. The Review Panel understands that AESO did not perform Category D7 studies in the course of its corridor assessments because such risks are necessarily route dependent. The Review Panel finds that AESO’s decision to defer Category D7 analysis at the NID stage was reasonable, given that no specific route in any of the proposed corridors was then contemplated.
However, in response to a request from Board Counsel, AESO provided an assessment of a Category D7 event premised upon a new 500 kV line sharing a right-of-way with existing 240 kV lines in the West Corridor. AESO concluded that the risk associated with a Category D7 event could be mitigated by the use of the existing UVLS scheme, resulting in minimum load loss (401 MW north of the Benalto substation and 217 MW south of Benalto). AESO further concluded that the implementation of a supplemental generation remedial action scheme could reduce load loss to zero for such an event.
The Review Panel observes that there was considerable debate among parties regarding the completeness of AESO’s assessment and whether the necessary dynamic modelling had been conducted. The Review Panel notes that AESO emphatically confirmed that the necessary dynamic studies had been performed. The Review Panel concurs with all interested parties that it is essential to assess the low-probability event of common outage, which would have severe consequences to the system. However, the Review Panel considers that these matters are most appropriately addressed within the context of a specific routing hearing. As such, should AltaLink’s application for new transmission facilities propose that a new 500 kV line be built parallel to existing 240 kV facilities within a common right-of-way, the Review Panel expects that AESO will be able to produce and defend its study results, including the dynamic modelling that it has prepared in this regard.
Regarding the ERCB decision cited by ATCO in which that Board determined that it would be unacceptable to route two 500 kV transmission lines within the same right-of-way, the Review Panel notes that the ERCB’s decision was fact specific and premised on specific contingency analysis for the transmission system as configured at that time. The Review Panel also observes that this matter was determined prior to deregulation, when the need for transmission upgrades and specific facility siting were conducted within a single hearing.
With respect to the issue of operational reliability as it relates to interconnection at Genesee, the Review Panel accepts AESO’s evidence that because Concept V includes an additional 500 kV circuit (the third line) terminating at Genesee, it offers superior operational reliability compared to 500 kV concepts that do not terminate at Genesee, including those routed in the Central and East Corridors. The Review Panel notes that the addition of this third line would reduce the potential risk and impacts of generation curtailment and load shedding under multiple contingencies. Similarly, the Review Panel considers that the third line would also enhance the ability to perform scheduled maintenance and introduce operational flexibility in the KEG system. The Review Panel finds that concepts originating out of Ellerslie do not share these advantages. As such, it finds that the West Corridor is superior to the other corridors in this regard.
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One of the issues considered by AESO in its original corridor assessment was ease of connection to future generation and load. The Review Panel finds that the West and East Corridors offer greater ease of connection for future generation, with the West Corridor providing a direct connection for existing and future generation out of the Wabamun area and the East Corridor facilitating future generation from the Fort McMurray area.
The Review Panel notes the assertions of UPTAG and ATCO that it would be beneficial to locate the subject line closer to industrial development on the eastern side of the province. While the Review Panel acknowledges that there may be benefits associated with such an approach, it notes that the subject 500 kV line is not in response to the direct requirement of interconnecting either load or generation.
As to the issue raised by UPTAG regarding coordination of right-of-way in the east of the province, there is presently no Section 34 NID application before the EUB about a potential 500 kV line in the east shown in AESO’s 20-year [2005-2024] Transmission System Outlook document. As such, this issue does not justify substantial weight in considering the suitability of the West Corridor in this proceeding. On the other hand, the Review Panel believes that locating the 500 kV line in the West Corridor does not preclude future transmission reinforcement to supply industrial load in the east. The Review Panel also believes that it would be more difficult to transfer electric energy out of the Wabamun area if the line originates out of Ellerslie. Hence, the Review Panel finds that the West Corridor facilitates greater ease of connection than the other three corridors.
The Board notes that only a route in the West Corridor can practically facilitate a future connection to a Lochend substation. The Review Panel recalls that at the original NID proceeding, AESO confirmed that Concept V did not require immediate commitment to the construction of a Lochend substation and identified some technical issues related to incorporating a Lochend substation into the AIES.43 Notwithstanding, the Board acknowledges that Concept V may offer flexibility for future system planning without sacrificing operational flexibility and does not require the immediate commitment to the construction of a Lochend substation.
Finally, UPTAG raised the issue of “new circumstances” based on AESO’s testimony that it would re-examine the location of a future second 500 kV line. The Review Panel notes that AESO’s position in this regard is consistent with its evidence in the first hearing where it stated: And part of the appeal, at least, for Concept V is the flexibility, in that after completing the first 500 kV, there are a number of different alternatives besides Concept V that you could always move to if circumstances changed. And that is definitely a positive.44
The Review Panel considers that such an approach is consistent with AESO’s obligations pursuant to Section 8 of the Transmission Regulation to plan and ensure that Alberta’s transmission meets performance and reliability requirements. Should AESO file a second NID for the further development of Concept V, the Review Panel expects that AESO will fully assess its continued appropriateness as the most appropriate means to address the identified need.
43 NID Application 1346298 Hearing Transcript Volume 5, pages 1056-1057. 44 Transcript, page 1083, lines 13-19. EUB Decision 2006-114 (December 6, 2006) • 51 Request for Review and Variance of Decision 2005-031
In conclusion, the Review Panel finds that within the context of this proceeding each of the corridors is similar with respect to electrical considerations. In that regard, the Review Panel notes that the while the three easternmost corridors offer increased flexibility for route diversity over the West Corridor by virtue of their greater area, the West Corridor has advantages with respect to operational reliability and ease of connection to existing and future generation in the Wabamun area.
8.6 Visual Impacts 8.6.1 Views of the Parties UPTAG submitted that the landscapes of the West Corridor had already suffered “visual pollution”45 from the existing transmission line towers and oil and gas development. It argued that the development of more towers would create a critical mass of industrialization incompatible with the scenic values of the area. UPTAG noted that the location of the West Corridor between the lakes and the mountains of western Alberta made it the ideal location for recreational activities. UPTAG noted in that regard the numerous campgrounds, ski areas, cultural destinations, and natural areas located within or near the corridor. UPTAG argued that these attributes made the West Corridor uniquely suited for agri-tourism development.
Lavesta testified that the West Corridor would provide a unique recreational environment for residents from surrounding communities and others to enjoy fishing, hunting, and many other seasonal outdoor activities. Lavesta provided a series of photographs that had been digitally altered on a computer that portrayed how dramatically a landscape could be changed with the addition of high voltage transmission towers.
EPCOR argued that there would be visual impacts associated with the proposed facilities wherever they might be constructed and it would be unreasonable for the Board to conclude that concerns similar to those voiced against the West Corridor would not exist in other parts of Alberta or would differ materially in terms of severity.
Respecting UPTAG’s concerns related to visual and recreation impacts, AltaLink argued that all parts of the province had aesthetic benefits and recreational opportunities. AltaLink further argued that UPTAG provided insufficient evidence to show “why the West Corridor is superior to other corridors.” Moreover, AltaLink noted that the visual and recreational impacts raised by UPTAG pertained to specific locations and thus should be dealt with at the second-stage routing hearing.
The following table summarizes AESO’s comparison of visual impacts:
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Table 4.8-1 – Visual Impact West Corridor Alternative Central Corridor East Corridor Alternative Alternative West Corridor NW Calgary to Ellerslie to Tofield East Corridor Central Corridor Langdon Corridor Area Corridor 75% of Genesee 25% of Genesee to 100% of an 20% of Ellerslie to 80% of Ellerslie to Langdon Route Langdon Route Ellerslie to Langdon Route to Langdon Langdon Route Route
Visual impact Least Most Mid Most Least
Lowest Visibility from Lowest residential Higher residential Medium Higher residential residential residential areas density density residential density density density Provincial park and 2 ski areas (E. recreational areas Recreational Red Deer and include 7 installations: Wetaskiwin); Aesthetic campgrounds. Country residential, campgrounds, provincial sensitivity at Campgrounds, 2 hobby farms and 2 parks, and Ministik, Recreational usage recreation areas Red Deer River ski areas near campgrounds Cooking and near Coal Lake; 4 in Drumheller Dixon Dam and W. (Avoidable) Beaverhill Lake municipal area. Sylvan Lake. areas. Routing campgrounds (Routing may may avoid. (Avoidable) avoid)
8.6.2 Views of the Review Panel The Review Panel finds that visual impacts would be greatest in the Central Corridor, least in the West Corridor, and mid-level in the East and Central/East Corridors. The Review Panel considered the following factors when making this determination:
• visibility from residential areas,
• routing flexibility for areas of dense population and development,
• recreational usage, and
• line length.
The Review Panel notes the difficulty associated with assessing visual impacts at the corridor level but agrees with AESO and ATCO that such impacts may reasonably be estimated by consideration of population density and recreational usage within each corridor.
Regarding population density, the Review Panel considers this issue in detail in Section 8.3.2 above. There, the Review Panel determined that the Central Corridor would have the greatest residential impact because of the number of urban centres within or adjacent to its boundaries. The Review Panel also notes that this corridor potentially has the greatest number of residences within 200 m of any given route within it and the largest number of stakeholders to consult.
In Section 8.3.2, the Review Panel also recognizes that a line originating from Ellerslie must be routed through an area of dense population near Ellerslie, whereas the West Corridor has greater flexibility to be routed away from the outskirts of Calgary. The Review Panel considers that the visual impacts associated with a 500 kV transmission line will be amplified by routing it through the densely populated and developed Ellerslie area, even if it represents only a small proportion of the subject corridors.
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Regarding recreation usage, the Review Panel notes that each corridor includes unique landscapes that attract recreational users. The West Corridor includes popular recreational lakes and views towards the Rocky Mountains, the Central and Central/East Corridors also have numerous lakes and other areas that are popular with visitors, and the East Corridor traverses the badlands area near Drumheller. The Board notes that all of these corridors have provincial recreation areas and numerous campgrounds within them.
The Review Panel finds that the additional length of a line in the East Corridor does not have a significant impact on its visual impact ranking due to the very low population density that characterizes 80 per cent of its route.
Based on the above, the Review Panel finds that the Central Corridor would have the greatest visual impacts due to its proximity to more urban centres than any other corridor and the fact that it must egress through the densely populated Ellerslie area of south Edmonton. The Review Panel finds that the Central and Central/East Corridors would have the next greatest visual impact because of routing out of Ellerslie. The Review Panel finds that the West Corridor would have the least potential for visual impacts because of the flexibility to avoid major urban centres.
8.7 Special Constraints 8.7.1 Views of the Parties As the Review Panel summarized views of parties regarding recreational usage in the previous section, it has considered, but not repeated, the parties’ views in that regard in this section.
UPTAG identified several cultural destinations in the West Corridor, such as Markerville, Stephansson House, the Danish National Museum at Dickson, and the Dickson store museum. UPTAG noted that Markerville was the only historic site identified in AESO’s corridor comparison report.
UPTAG noted that although AltaLink identified more special constraints in the West Corridor than the Central Corridor, AESO rated them the same based on the assumption that routing may avoid the constraints. UPTAG submitted that there were more constraints in the West Corridor. UPTAG further argued that AESO’s comparison omitted the two private airstrips in the Warburg area, Sylvan Lake, two ski areas, and seven provincial and at least eight private campgrounds in the West Corridor. UPTAG also pointed out that there would be fewer opportunities to avoid special constraints in the West Corridor. As such, UPTAG concluded that on a corridor level, the West Corridor would be more affected because of special constraints and that it would offer less scope for avoidance.
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The following table taken from Exhibit N4 (a) summarizes AESO’s comparison of the special constraints:
Table 4.9-1 – Special Constraints West Corridor Alternative Central Corridor East Corridor Alternative Alternative West Corridor NW Calgary to Ellerslie to Tofield East Corridor Central Corridor Langdon Corridor Area Corridor 75% of Genesee 25% of Genesee to 100% of an 20% of Ellerslie to 80% of Ellerslie to to Langdon Route Langdon Route Ellerslie to Langdon Route Langdon Route Langdon Route Special constraints Least Most Least Most Least Campgrounds, Some Ski areas and Glenifer Lake, and campgrounds and Effects on Hobby farms, campgrounds. ski areas. May be Cooking Lake area lake areas. May be recreational usage Chestermere area May be avoidable avoidable with avoidable with with routing routing routing Historical resources in Markerville Historic Drumheller and Conflicts with Site. May be No known conflicts None identified None identified Red Deer River historical sites avoidable with with major sites valley area. May routing be avoidable with routing Route along 918L Anticipate routing may impact can avoid physical Calgary conflicts. TFO will Routing may avoid Routing may avoid International Airport seek input from physical conflicts. physical conflicts. and would be Transport Canada Private strips near Must be assessed Must be assessed Physical conflict with assessed by to ensure no Ellerslie and by Transport by Transport private and Transport Canada conflict with Langdon may Canada and Canada and commercial airstrips or Nav Canada to aerodromes. influence routing. airfield owners to airfield owners to ensure no conflicts. Routing would be ensure no ensure no Routing would be adjusted near conflicts. conflicts. adjusted near private strips to private strips to avoid conflict. avoid conflict.
AESO acknowledged that each corridor presents some level of special constraint. In AESO’s view, there was no compelling evidence presented in this hearing to suggest that a different corridor be considered or to reclassify its ratings, as the particular classification represented an average over the entire length of the corridor. AESO suggested that specific constraints would be addressed in the transmission facility application stage.
In its written evidence, AESO considered ATCO’s Central/East Corridor and ranked it as having the “least” impact in terms of special constraints, which was consistent with ATCO’s own assessment.
8.7.2 Views of the Review Panel As stated in the previous section, the Review Panel finds that the recreational impacts associated with a route in any corridor would be similar. Regarding conflicts with historical sites, the Review Panel considers that the East corridor may present the greatest concern given the scope of the historical resources associated with the badlands and the Drumheller region.
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The Review Panel agrees with AESO that if a special constraint could be avoided by careful routing of the transmission facilities, that constraint does not make the overall corridor inferior. Given the evidence presented by the parties, the Review Panel finds that in terms of special constraints, the West Corridor would be impacted to the similar extent as the East corridor and the Central Corridor would be impacted similarly as ATCO’s Central/East Corridor. In this regard, the Review Panel finds that the Central and Central/East Corridors would be slightly better than the West and East Corridors.
9 HEALTH AND SAFETY IMPACTS
9.1 Views of Parties A number of parties raised concerns with respect to EMFs. Dr. Eliason, a veterinarian and member of UPATG, discussed her review of EMF literature. She concluded that recent literature reinforced the possibility that there was a connection between EMF and serious illness, including childhood leukemia. She also pointed out that research more recent than that relied upon by AltaLink indicated an epidemiological link between childhood leukemia and exposure to transmission line EMF. UPATG submitted that even AltaLink did not rule out that some studies indicated potential health effects.
Both UPTAG and the LLPG/566 Group acknowledged that studies with respect to a causal connection between EMF and health problems could go either way. However they submitted that it would be appropriate to take a “precautionary approach” to line routing, given the potential for health risks. They indicated that an appropriate solution would be to move the line to areas where the least number of people would be affected and where there would be ample room between residences.
Regardless of the issues of scientific certainty, UPTAG submitted that the fact remained that some landowners believed that transmission lines were associated with health risks, causing anxiety and stress especially when family members or neighbours had been stricken with cancer. They noted that an additional high power line in proximity to those already located in the West Corridor would increase this stress.
With respect to safety issues, Mr. G. Smith, of UPTAG, submitted that the safety guidelines used by AltaLink engineers for the design and procurement of materials for construction of the proposed power line had not kept current with the size and height of the machinery in use today. As well, he noted that possible stray voltage and static discharge due to the proposed power line would create a safety concern for landowners.
Lavesta’s witnesses also expressed concern regarding EMF impacts on human and animal health. They cited studies from the Department of Health Services in California regarding links between EMF and childhood leukemia, adult brain cancer, Lou Gehrig's Disease, and miscarriage. These witnesses also testified that cattle herds exposed to power lines had a large incidence of eye cancer.
The First Nations stated that they shared the concerns about EMF’s possible health effects on animals and plants in the vicinity of high voltage electric transmission lines. They suggested that “further investigation is warranted.”
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TransAlta noted that many of the EMF-related concerns expressed were not within the narrow scope of this proceeding.
AltaLink submitted that EMF concerns would not be exclusive to the West Corridor. AltaLink argued that routing in the East or ATCO’s Central/East Corridor would not remove EMF concerns. Rather, AltaLink stated that the longer length of lines in those corridors could mean that more geographic area would be subject to EMF. It also noted that EMF concerns would be site specific. AltaLink stated that a full review of EMF would be included in AltaLink’s EIA for its transmission facility application.
AESO stated that EMF is an important question that arises in respect of transmission lines irrespective of their specific location. However, AESO noted that this issue should be dealt with at the proper time and within the proper context. AESO observed that the issue of EMF must be included in every EIA prepared for a 500 kV transmission project and noted that Alberta Health and Wellness is involved in the drafting of the terms of reference for such EIAs. AESO also noted that all 500 kV transmission lines require approval from Alberta Environment, as well as from the EUB. .
9.2 Views of the Review Panel The Review Panel finds that when assessed from a high level, the potential for EMF impacts would be similar in the West, Central/East, and East Corridors and slightly higher in the Central Corridor. The Review Panel bases this finding upon its conclusions respecting residential impacts in Section 8.3.2. The Review Panel notes, in that regard, that the Central Corridor includes the greatest number of urban centres and potentially has the greatest number of landowners within 200 m of a proposed route. Regarding safety impacts, the Review Panel considers that the impacts in the West Corridor would be no greater than in the other corridors. The Review Panel bases this conclusion on the fact that a route in all corridors would cross roughly the same amount of cultivated land.
The Review Panel recognizes the legitimate concerns of interested parties regarding this important issue and finds that this is a matter best addressed once a specific route has been selected. The Review Panel acknowledges that parties at the review hearing were extremely concerned about this issue and notes AltaLink’s testimony that EMF impacts and associated possible health effects are part of its EIA for its transmission facility application.
10 IMPACTS ON FIRST NATIONS
10.1 Traditional Lands The First Nations provided evidence on the possible impacts the West Corridor would have on their use of traditional lands. The First Nations indicated that the approval of the West Corridor would contribute to the destruction of their traditional and cultural lives. They noted that this project was one of a number of industrial developments whose cumulative effect would destroy the ability of First Nations to maintain a culture and way of life protected by federal statute. The First Nations advised that they had occupied and carried out traditional activities in central Alberta, including within the West Corridor.
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The First Nations noted AltaLink’s submission that 98 per cent of the lands within the West Corridor were privately held and 85 per cent of the lands in the corridor were cultivated. The First Nations noted that a significant amount of the uncultivated lands located in the corridor were between Pigeon Lake and Buck Lake Reserve, lands that supported First Nations’ traditional, cultural, and spiritual uses. The First Nations indicated that the hunting and related Treaty rights were exercised on those lands constituting the corridor. They stated that Treaty No. 6 protected the right to hunt within Crown land. They also indicated that there was no evidence presented as to the suitability of other corridors from a traditional land-use perspective.
The First Nations indicated that in order to do a proper assessment of the West Corridor, a detailed site assessment would be required, including examination of the impact on plant life and animal populations. Consideration of these matters at the HEEA stage would be too late to remedy the corridor selection. Doing this at the front end would ensure that the information gathered could be factored into the corridor assessments.
10.2 Consultation The First Nations noted that the impact of the proposed corridor on traditional land was so broad that it was virtually impossible to present a unified view. The First Nations argued that without prior consultation by government and industry, First Nations impacts were difficult to determine. The First Nations argued that as they were not consulted with respect to the review hearing, there was a need for expanded consultation and communication between TFOs, AESO, government, and First Nations.
The First Nations noted that legislation and policy regarding “prior consultation” with First Nations was evolving. The First Nations submitted that the Board should direct AESO to consult with them should the NID application be reheard, as well as for future applications. They indicated that since the original NID hearing, AESO had undertaken steps to improve its consultation practice with First Nations.
With respect to the West Corridor, the First Nations indicated that AESO relied primarily on the consultation of AltaLink. Even though other corridors were considered in the original hearing, no mention was made of First Nations’ issues. The First Nations noted that ATCO had proposed a viable alternative corridor for consideration, which should carefully be considered by the Board.
The First Nations submitted that the original decision to use the West Corridor should be overturned and a new hearing initiated to consider corridors to the east. They noted that this would ensure that they had more time to have their concerns engaged and remedied before the selection of a transmission line route.
The First Nations summarized their concerns with respect to the West Corridor as follows:
• There are already two transmission lines within the existing corridor.
• There is a traditional-use corridor in the region.
• Existing transmission lines intersect the traditional-use corridor.
• There will be cumulative effects on the traditional-use corridor associated with these lines.
• There are 13 First Nations affected by this proposed development.
• First Nations privately hold land in the area.
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• Treaty land entitlements cover approximately 15 per cent of the corridor.
The First Nations submitted, however, that if the Board reconfirmed the West Corridor, any approval should be conditioned as follows:
• AltaLink be required to hire First Nations members in the transmission line development.
• Contractors be required to stipulate a minimum number of First Nations members to be employed, with priority to qualified First Nations members.
• AltaLink establish a Cree cultural information centre in the West Corridor area.
• AltaLink identify business and marketing opportunities for First Nations members.
• AltaLink compensate the First Nations for the loss of traditional hunting areas.
Calgary noted that the law concerning the role and requirements for First Nations consultation had been clarified by the courts to consult aboriginal peoples regarding developments that may infringe on both treaty and claimed rights. Calgary also noted that the First Nations had identified concerns with respect to the impacts of a 500 kV line should it cross traditional lands. Calgary urged the Board to give them due weight and consideration in its assessment of the evidence in these proceedings.
AltaLink acknowledged the potential impacts on the First Nations, but indicated that those impacts were limited, site specific, and not unique to the West Corridor. However, AltaLink stated that it was willing to explore with the First Nations some of the recommendations set out in its argument.
Regarding the issue of consultation, AESO noted that in the original NID hearing the First Nations provided written evidence on consultation issues but called no witnesses to speak to this subject. AESO observed that the First Nations’ argument in the original proceeding focused on the potential for First Nations’ commercial involvement in transmission development projects, depending upon the route that might be chosen. AESO discounted the First Nations’ argument that the review hearing was its first opportunity to present evidence to the Board because the Board did not ask it to sit witnesses at the original NID hearing. AESO argued that the reason that the First Nations did not give direct evidence at the original NID hearing was that the First Nations chose not to do so.
AESO also disagreed with the First Nations’ argument that the Board ruled in Decision 2005-031 that First Nations involvement was beyond the scope of the original NID hearing. AESO argued that in Decision 2005-031 the Board found it could not give a direction to parties to engage in discussions of commercial opportunities in the project for First Nations.
AESO indicated that it was important to consult with the First Nations concerning transmission development in Alberta. AESO indicated that meaningful consultation was better undertaken in the context of HEEA facility applications. Such a project-specific approach would better ensure the meaningful involvement of the First Nations in transmission issues and a better means of accommodating First Nations rights and traditional land uses.
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AESO noted that EUB Directive 028 indicated that such obligations arose in the context of HEEA. AESO noted that AltaLink would include in its EIA that would include a review of First Nations issues.
10.3 Views of the Review Panel The Review Panel appreciates the evidence provided by the First Nations regarding the suitability of the West Corridor. The Review Panel understands that this information was compiled with some haste to accommodate the hearing schedule, and the Review Panel is extremely appreciative of the First Nations’ efforts in that regard. The Review Panel considers that the evidence provided by the First Nations furthered its understanding of the high-level impacts associated with the West Corridor for this proceeding.
However, the Review Panel observes that the majority of concerns raised by the First Nations are site specific in nature and thus appropriately the subject of specific facility or routing hearings pursuant to HEEA. The Review Panel considers that in such a venue the Board can properly consider and other parties can effectively respond to the concerns expressed by the First Nations.
With respect to the issue of consultation as it relates to the review hearing, the Review Panel finds that the First Nations did not provide the necessary notice of intention to raise this issue, as required by Section 12 of the Administrative Procedures and Jurisdiction Act. As such, the Review Panel finds that it has no jurisdiction to consider issues of consultation in that context. However, regarding the issue of consultation as it relates to AltaLink’s transmission facility application, the Review Panel expects that the applicant will take all necessary steps to meet the existing consultation requirements.
With respect to the five conditions outlined in the First Nations’ argument, the Review Panel does not have the jurisdiction to direct AltaLink in the manner proposed by the First Nations. The Review Panel notes, however, that AltaLink has committed to explore some of the recommendations set out by the First Nations in its argument.
11 OTHER MATTERS
11.1 Did AESO Apply for and Did the Board Approve a Transportation and Utility Corridor? 11.1.1 Views of the Parties Lavesta asserted that AESO exceeded its statutory mandate in two instances within the NID application. First, it stated that AESO improperly sought the Board’s approval for the siting and construction of a specific transmission line. Second, Lavesta contended that AESO improperly sought the Board’s approval to designate a transportation and utility corridor. Lavesta argued that the role of AESO pursuant to Section 34 is restricted to the identification of electrical transmission need and the provision of contemporary data and analysis in support of the identified need.
Likewise, Lavesta argued that the EUB has no jurisdiction to approve a transmission line in the course of a Section 34 NID proceeding. Further, Lavesta contended that the Board exceeded its jurisdiction in Decision 2005-031 when it approved the West Corridor. Lavesta contended that the authority to approve transportation and utility corridors lies solely with Alberta Infrastructure
60 • EUB Decision 2006-114 (December 6, 2006) Request for Review and Variance of Decision 2005-031
and Transportation, pursuant to the Government Organization Act. In support of this contention, Lavesta cited ERCB Report 80-A: 500kV Transmission Line Keephills-Ellerslie, in which the ERCB referred to a decision regarding the designation of a utility corridor to the Government of Alberta.
Calgary noted that the applicable legislation did not constrain or prohibit AESO from formulating or determining a corridor for the purposes of preparing a Section 34 NID application. Likewise, Calgary noted, these enactments did not constrain or prohibit the Board from reviewing corridors designated by AESO when considering a Section 34 NID application. Calgary also noted that the Government Organization Act did not refer to the word corridor, nor did it prohibit or constrain AESO or the Board from designating or approving a corridor within the context of a Section 34 NID application.
AESO argued that Section 34 required it to describe the manner in which or the means by which it proposed to meet an identified transmission system need. AESO asserted that this provision was without constraint as to the way or ways in which AESO may do so. AESO contended that this obligation was affirmed in the Transmission Regulation, which required it to include in each Section 34 NID application a recommendation for a preferred option to respond to the identified need. AESO stated that by defining geographic areas in which proposed transmission facilities could be built, it was in no way seeking approval of a specific corridor from the Board.
AESO acknowledged that Report 80-A discussed the development of a utility corridor that required separate approval from the Government of Alberta but AESO asserted that the corridors it had discussed in its NID application were of an entirely different nature. AESO emphasized that it was not seeking EUB approval for a transportation and utility corridor; rather, it used the word corridor to describe geographical areas within which it believed transmission facilities might be built.
11.1.2 Views of the Review Panel As noted in Section 7.2, the Review Panel is of the view that AESO’s methodology for corridor alternative comparisons was reasonable and in accordance with existing requirements.
The Review Panel finds Lavesta’s assertion that AESO sought and obtained approvals from the Board for the construction of a specific line and the designation of a transportation and utility corridor to be without merit. The NID application and Decision 2005-031 reveal that AESO sought and received Board approval of Concept V, a 500 kV transmission development option located within the West Corridor. Both documents clearly acknowledge that the specific routing of Concept V within the West Corridor must properly be considered pursuant to subsequent applications under the HEEA. Both documents identify that the specific routing of Concept V was outside of the scope of the NID application.
The Review Panel considers that the NID application prepared and submitted by AESO in the first hearing complied with regulatory requirements then in effect. The Review Panel finds that there is no evidence to substantiate Lavesta’s claim that AESO exceeded its jurisdiction in its preparation and filing of the application. Likewise, the Review Panel finds that Lavesta failed to establish that the Board exceeded its jurisdiction when it approved Concept V as the appropriate means to address the need for upgrades to the N-S transmission system.
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11.2 Transmission Losses 11.2.1 Views of the Parties Benign argued that its involvement in the proceeding was appropriate because the choice of a different corridor could result in greater loss savings for generators. Benign stated in its evidence that AESO had informed generators in southern Alberta that they would have higher system access charges because of increases in their loss factors after commissioning of the N-S 500 kV line in 2010.
Benign argued that if a different corridor resulted in less loss savings but balanced the impact of loss factors in a less prejudicial way, the Board must have regard to that result. Benign contended that where a transmission facility upgrade or expansion would unduly prejudice others, the Board was obligated to consider that impact. Benign indicated that AESO had failed to consider the impact the proposed 500 kV line would have on southern Alberta generators. As well, Benign argued that the Board, in not directing AESO to provide the analysis or examination of that issue, failed to ensure that the expansion would foster a fair, efficient, and competitive generation market.
Benign argued that the Board should direct AESO to provide additional information regarding relative “economic and other impacts” before making a final decision on routing of the 500 kV line.
AESO noted that Benign participated in the original hearing and filed evidence with respect to the direct assignment process for transmission facilities, which the Board found to be beyond the scope of that proceeding. AESO cited the Board’s letter to Benign dated July 26, 2006, wherein the Board granted Benign’s request to participate in the hearing but ruled that the issue of loss factors was outside the scope of the review process.
While AESO questioned the validity of Benign’s participation in the proceeding, it noted that transmission line losses were different from loss factors and clarified that the latter was the means used in tariff design to allocate losses to transmission system-connected generators. AESO stated that change in line length associated with different corridor selections would not alter the loss factors or the total volume of system losses in a material way. AESO emphasized that rate, tariff, and cost recovery issues were not relevant to the determination of which transmission system facilities should be built.
AESO also disagreed with Benign’s assertion that a proper determination on the “routing of the proposed 500 kV line” must include an examination of its impact on the loss factor methodology. AESO contended that its evidence demonstrated that the difference in line length would be a negligible or immaterial factor in the determination of the value of losses for the three corridors considered by AESO.
AESO noted that its Loss Factor Rule 9.2, implemented in May 2005, which was the focus of Benign’s concern, was the subject of proceedings before the Board as well as the Alberta Court of Queen's Bench and the Alberta Court of Appeal. As such, AESO argued that this issue should not be reconsidered by the Board within the context of the review hearing.
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AESO submitted that changes in loss factors were an uncertainty that generators in a competitive market must accept as a result of transmission development and load and generation changes, as contemplated and set out in Section 19 of the Transmission Regulation.
11.2.2 Views of the Review Panel By letter dated July 26, 2006, the Review Panel advised parties that it would allow Benign to participate in the review hearing, with the understanding that Benign would restrict its participation to addressing matters within the scope of the proceeding. The Review Panel also ruled that it would not review the issues raised by Benign with respect to loss factors. The Review Panel advised Benign that these matters were outside the scope of the proceeding.
The Review Panel considers that the sole focus of Benign’s participation in the review hearing was the issue of loss factors. The Review Panel confirms that the application of loss factors is the means to allocate transmission losses of the entire province to generators and is not related specifically to suitability of corridor options to locate the proposed N-S 500 kV line. The Review Panel considers that the issues raised by Benign in the review hearing in no way relate to the suitability of the West Corridor and are outside the scope of the review hearing.
12 CONCLUSION
The Review Panel considers that one of the greatest challenges associated with the new two-step process for transmission development is determining the appropriate level of landowner/ agricultural/environmental information to be included in the NID. The Review Panel finds that a comparison of corridors based on the ERCB criteria, supplemented, where possible, by the more detailed evaluation factors, will provide the information necessary for the Board to understand high-level environmental, agricultural, and landowner impacts. However, the Review Panel recognizes that many of the evaluation factors can be assessed effectively only after a final route has been identified.
The Review Panel finds that the legislative framework makes it clear that site-specific routing issues may be considered only in the second-stage HEEA application. The Review Panel must therefore consider such matters at a higher level at the Section 34 NID application stage. The Review Panel finds that it requires sufficient information at that stage to allow it to understand the respective challenges associated with routing a transmission line within a prospective corridor. In that regard, the Review Panel expects that AESO would identify whether and why a particular corridor is unsuitable for transmission development or whether one or more of the corridors is markedly superior or inferior when compared to the other. However, the Review Panel understands that there may be circumstances where more than one corridor will be suitable for transmission development and the ultimate determination of a transmission solution will be dependent on the Review Panel’s assessment of technical and economic factors.
The Review Panel finds that the evidence filed at the review hearing was sufficient to allow it to appropriately assess and understand the challenges associated with routing a transmission line through each of the corridors examined. The following table summarizes the Review Panel’s conclusions with respect to corridor comparison based upon the new information provided at the review hearing:
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West Corridor Central Corridor ATCO Central/East East Corridor Alternative Alternative Corridor Alternative Alternative Agricultural Similar Similar Similar Similar impact Residential Less More Less Less impact Environmental Less Less Less More impact Electrical Similar Similar Similar Similar consideration Visual impact Least More Less Less
Special More Less More Less constraints Health and Less More Less Less safety impacts
Based on its detailed analysis, the Review Panel finds that the evidence presented at the review hearing did not demonstrate that the West Corridor is unsuitable for future transmission development or that any of the other corridors examined was markedly superior or inferior to it. To the contrary, the Review Panel finds that each corridor presents a roughly similar degree of challenge for future transmission development. While those challenges vary slightly for each corridor, depending upon the criteria considered, the Review Panel accepts the evidence of AESO, ATCO, and AltaLink that consideration of whether or to what degree those challenges may be mitigated is best addressed within the context of a route-specific transmission facility application.
Having completed its analysis of high-level corridor impacts, the Review Panel must incorporate those findings into its overall assessment of Concepts V and XII. As noted previously, this includes assessment transmission planning and system performance requirements, high-level corridor considerations, and economics.
In Section 6, the Review Panel states that the public interest standard will generally be met by an activity that benefits the segment of the public to which the legislation is aimed, while at the same time minimizing to an acceptable degree the potential adverse impacts on more discrete parts of the community. As the Review Panel has determined that the potential for discrete adverse impacts is no greater in the West Corridor than in any of the other corridors considered, the Review Panel concludes that the location of Concept V within the West Corridor is at best a neutral factor. The Review Panel therefore confirms the Board’s determination that Concept V is reasonable and in the public interest and therefore upholds Decision 2005-031.
The Review Panel notes that since the NID application was filed, new information requirements for Section 34 NID applications were added by Section 5 of the Transmission Regulation. The Review Panel observes that the vast majority of the new requirements relate to the technical and economic evaluation of transmission upgrade alternatives. The only additional information requirement provided for corridor assessment is found in Section 5(2)(g)(vii), which requires AESO to include in its comparison of alternatives an assessment of “environmental and other considerations”.
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The Review Panel is of the view that the current information requirements relating to corridor assessment could be significantly enhanced by providing more specific guidance to AESO as to the impacts it should assess and the level of detail required. In that regard, the Review Panel will recommend to the full Board that the EUB consider adding new and more specific requirements for corridor assessment to Directive 028 following appropriate stakeholder consultation involving the public, industry, First Nations, and AESO. As part of this initiative, the Review Panel will recommend that a high-level examination of First Nations impacts be included in future Section 34 NID applications.
13 ORDER
IT IS HEREBY ORDERED THAT
(1) The six review applications to review and vary Decision 2005-031 are dismissed.
(2) Decision 2005-031 is upheld.
Dated in Calgary, Alberta, on December 6, 2006.
ALBERTA ENERGY AND UTILITIES BOARD
B. T. McManus, Q.C. Presiding Member
J. D. Dilay, P.Eng. Board Member
T. McGee Board Member
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Request for Review and Variance of Decision 2005-031
APPENDIX A MAP OF THE CORRIDORS
R.4 R.1W.5M. R.24 . R.20 R.16 R.12W.4M. R KEEPHILLS City of T.54 Lac St. Anne GENESEE Edmonton AREA 16 Wabamun Lake Beaverhill Lake North Sask. T.50
Pigeon Lake
T.46 CENTRAL-EAST WEST CORRIDOR CORRIDOR CENTRAL CORRIDOR Gull T.42 Lake
Sylan Buffalo Lake Lake City of Red Deer T.38
EAST CORRIDOR
T.34
2 T.30
R ed De er
R. T.26 LANGDON SUBSTATION City of 102S Calgary T.22 1 Bow R.
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APPENDIX B ACRONYMS AND ABBREVIATIONS
AESO Alberta Electric System Operator (also ISO)
AIES Alberta’s Interconnected Electric System
AltaLink AltaLink Management Ltd.
ATCO ATCO Electric Ltd.
Benign Benign Energy Canada Inc.
Calgary The City of Calgary
EIA environmental impact assessment
ECI Energy Consultants International Inc.
EMF electromagnetic field
EPCOR EPCOR Utilities Inc.
ERCB Energy Resources Conservation Board
ESA environmentally significant area
EUB Alberta Energy and Utilities Board
GRAS generation remedial action scheme
HEEA Hydro and Electric Energy Act
HVDC high voltage direct current
IPCAA/ADC Industrial Power Consumers Association of Alberta/Alberta Direct-Connect Consumer Association
ISO Independent System Operator (also AESO)
KEG Keephills – Ellerslie – Genesee kV kilovolt
Lavesta Lavesta Area Group
LLPG/566 Group Lochend to Langdon Group and 566 Corridor Group
MW megawatt
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MWh megawatt hour
NID Needs Identification Document
NERC North American Electric Reliability Council
N-S north-south
PFRA Prairie Farm Rehabilitation Administration
QE2 Queen Elizerbath II
R&V review and variance
TDP Transmission Development Policy
TFO Transmission Facility Owner
TMR Transmission Must Run, which means a generator is constrained to stay on line to generate at a minimum specified MW output level in order to maintain transmission system security
TransAlta TransAlta Corporation
TransCanada TransCanada Energy Ltd. and Northern Lights Transmission
TUC Transportation and Utility Corridor
UPTAG United Power Transmission Area Groups
UVLS under voltage load shed
WECC Western Electric Coordinating Council
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APPENDIX C HEARING PARTICIPANTS
Principals and Representatives (Abbreviations used in report) Witnesses United Power Transmission Area Groups J. Steil, FCIP (UPTAG) J. Scriven, P.Eng. K. Buss A. Heinrich A. Jeffs C. Eliason C. Mobley J. Smith G. C. Smith C. Kalev J. Morton-Lewis K. Larson
Lavesta Area Group (Lavesta) J. Anglin J. Bodnar G. Slomp J. Slomp L. Rufenacht B. Lohmann D. Lohmann J. Lohmann I. Lovell A. Wettstein R. Hanson W. Warner J. Bolli A. Goetz C. Jensen E. Erickson J. Vetsch A. Finnen M. McLeod L. Lohmann J. Lee D. Pregoda
Lochend to Langdon Group (LLPG) and B. Ralston 566 Corridor Group (566) J. Knight J. B. Laycraft H. Lemmer M. Taks L. Konschuk R. Wrigley, MCIP W. Kipp
Alberta Electric System Operator (AESO) T. Cline, P.Eng. J. A. Smellie N. Millar, P.Eng. G. M. Nettleton (continued)
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APPENDIX C HEARING PARTICIPANTS (CONTINUED)
Principals and Representatives (Abbreviations used in report) Witnesses AltaLink Management Ltd. (AltaLink) M. Johns, R.E.T. R. Block D. Frehlich, P.Eng.
ATCO Electric Ltd. (ATCO) R. Berrien, P.Ag. L. Keogh K. Kadis P.Eng. S. Munro J. Crinklaw P. Goguen, P.Eng.
First Nations Former Chief Alexis J. Graves, P.Eng. B. Lee C. Buffalo L. Standing on the Road R. Saddleback L. Northwest L. Nepoose C. Okiymow P. Simpson F. Alexis B. Potts E. Sasakamoose S. Threefingers D. Paul F. Buffalo V. Soosay
Benign Energy Canada Inc. (Benign) H. R. Hansford
City of Calgary (Calgary) D. I. Evanchuk L. Semenchuk
EPCOR Utilities Inc. D. Crowther
Industrial Power Consumers Association of Alberta (IPCAA) D. B. MacNamara
Industrial Power Producers Society of Alberta (IPPSA) A. Slager (continued)
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APPENDIX C HEARING PARTICIPANTS (CONCLUDED)
Principals and Representatives (Abbreviations used in report) Witnesses TransAlta Corporation (TransAlta) P. Jeffrey
Utilities Consumer Advocate G. Hill
Informal Participants Adam Troitsky Andy Kitzul Bob Egan Brad Troitsky Breena Wengberg Butch French Christen Rufenacht Corrine Scheetz Crystal Lohmann David Mcfadden Edward Stutheit Evan Goetz Gail Troitsky George Gray George Troitsky Greg Troitsky Henry Kuelker Jessica Lohmann Joan Stutheit Ken Stemo Loran Diggle Marion Slomp Martha Krause Paul Slomp Priska Bolli Robert Torris Sharon Caswell Teeter Lohmann Tom Lee Y. Slomp
Alberta Energy and Utilities Board staff J. P. Mousseau, Board Counsel T. Y. K. Chan, Ph.D., P.Eng. R. Schroeder J. Wang, Ph.D.,P.Eng. K. Yang
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APPENDIX D EUB RULINGS ON APPREHENSION OF BIAS
The Panel has before it a motion by the Lavesta Area Group seeking to have all three Panel Members recuse themselves from sitting on this proceeding on the grounds that they are biased or that their continued involvement gives rise to a reasonable apprehension of bias. Firstly with respect to the motion: With respect to Mr. DeSorcy and I, Lavesta alleges that because he and I were on the original hearing panel which heard the AESO’s application, neither he nor I will be able to consider the evidence and argument in this proceeding in a fair and impartial manner. With respect to Mr. Dilay, it is alleged that his association with Mr. DeSorcy and I has compromised his ability to proceed and rule independently.
Other grounds cited in support of the motion include the allegation that the Panel has demonstrated a pattern of behaviour suggesting that it will not fairly consider motions or positions put forward by Lavesta; a question by myself to Mr. Lawson, regarding the nature of his association with the Lavesta Area Group and whether he was assisted by Mr. Bodnar in the preparation of his submissions, and the fact that none of the Panel Members appear to have an agricultural background.
The First Nations supported the motion, as did a number of individual landowners. Lavesta’s motion was opposed by the AESO, EPCOR, AltaLink, and UPTAG. The City of Calgary declined to take a position on the matter. Other parties to the proceeding provided no comment.
The Board would like to thank all those who provided thoughtful and cogent submissions on the law as it relates to allegations of bias or reasonable apprehension of bias. The Board considers that they accurately described the law in that respect. In turning to the tests: The Board notes that there was agreement amongst counsel with respect to the test that Canadian courts have applied to determine questions of bias and reasonable apprehension of bias. First test, in order to sustain an allegation of bias, it must be demonstrated that the decision maker would not decide the case independently and on the basis of the evidence, but would do so under improper influence and with a view to achieving an extraneous or otherwise improper purpose.
The test for a reasonable apprehension of bias has been described as follows: whether an informed person viewing the matter realistically and practically and having thought the matter through would think it is more likely than not that the decision maker, whether consciously or unconsciously, would not decide fairly. With respect to myself and Mr. DeSorcy: Mr. DeSorcy and I, along with Mr. Neil McCrank, were panel members at the original hearing of this matter and coauthored decision 2005-31. Following the issuance of that decision, the Board received requests from six parties to review that decision based on concerns relating to the selection of a transmission concept located in the West Corridor as the most appropriate means to address the identified need. The entire Board considered those requests and determined they raised the possibility that there may be new or previously-unavailable evidence that could lead the Board to vary or rescind decision 2005-31. The entire Board, therefore, granted a review of the decision as it related to the West Corridor and assigned Mr. DeSorcy, Mr. Dilay and myself to form the Panel.
Lavesta alleges that because of our prior involvement in this matter, our involvement in this proceeding gives rise to a reasonable apprehension of bias. It stated that there was evidence that Mr. DeSorcy and I are committed to our original decision and, thus, would be unable to consider the matter in a fair or independent manner. The Board has reviewed its governing legislation and
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finds that it has significant discretion with respect to its authority to review its own decisions. It further notes that its legislation provides no express prohibition as to the participation of its members in review proceedings, regardless of prior involvement in the matter.
As such, the Panel finds that there is no statutory bar to our participation in this proceeding. The Board also notes that counsel provided case law and persuasive authority that support the notion that the principles against biased decision-making do not necessarily disqualify tribal members from adjudicating on a matter which they heard previously.
The Board finds, therefore, that there is no absolute legal principle that prohibits our continued participation in the proceeding. As such, a determination on this issue must be based on the specific facts of this case. The Board finds the following to be important considerations: This is not a situation where the Board was directed to reconsider the matter as a result of an appeal or judicial review. The Board decided to review this matter as a result of their requests referred to earlier. If the Board did not believe that there was a possibility that new evidence might lead it to vary or rescind its decision, it would not have granted the review. The review was granted on the grounds that there may be new or previously-unavailable evidence that may lead the Board to vary or rescind decision 2005-31. This is not a matter where the review was granted on the grounds of an error of law, fact or jurisdiction.
No information was provided by Lavesta to substantiate its concern that Mr. DeSorcy and I have any level of commitment to our previous decision. The motion was opposed by UPTAG, who expressed its confidence that this Panel continues to be capable of rendering a fair decision based upon the evidence and argument presented in this proceeding. By referencing the UPTAG support for this motion, the Board wishes, in no way, to discount or dismiss the sincerely expressed concerns of the individuals we heard from in support of Lavesta’s motion. However, the Board merely wishes to acknowledge that UPTAG’s position suggests that there is, in fact, a broad spectrum of opinion held by parties aware of this proceeding: some who perceive bias on the part of Mr. DeSorcy and I, given our previous involvement, and some who perceive no such bias.
Having regard for all of the above considerations, this Panel is not convinced that an informed person, viewing the matter realistically and practically and having thought the matter through, would think it is more likely than not that the decision maker, whether consciously or unconsciously, would not decide fairly.
Some comments with respect to Mr. Dilay: Lavesta alleges that Mr. Dilay’s association with this Panel has compromised his ability to consider evidence and argument in this proceeding in a fair and impartial manner required of an administrative decision maker. Lavesta asserted that the concern with Mr. Dilay was self-evident and spoke for itself, but provided no legal authority for this proposition.
The Board finds that Lavesta has not substantiated the allegations with respect to apprehension of bias associated with Mr. Dilay’s continued involvement in the proceeding, and dismisses the motion in this regard, as well.
Some other grounds: Lavesta further asserted that a reasonable apprehension of bias with respect to this Panel existed because this Panel has demonstrated a pattern of behaviour that suggests it will not fairly address future motions or positions put forward by Lavesta. Mr. Bodnar referenced
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the Board’s treatment of the two notice of motions filed by Lavesta requesting a rescission of decision 2005-31 and an adjournment of this proceeding. The Panel again wishes to emphasis that its mandate with respect to this matter is limited to considering the suitability of the West Corridor. The motion raised by Lavesta raised new grounds not previously raised by review applicants, and this Panel determined that it did not have the authority to consider the motion. It referred the matter to the whole Board, which chose to consider the matter as a new review and variance. The Board’s full process in that regard was engaged. A decision on the issues raised in that motion was issued by the full Board and not this Panel. As such, the only decision this Panel has made with respect to submissions from Lavesta was to deny its adjournment request. The Panel finds this one decision does not demonstrate a pattern of behaviour that would lead an informed person, viewing the matter realistically and practically and having thought the matter through, to think that this Panel is more likely than not, whether consciously or unconsciously, to decide fairly.
Regarding the other grounds concerning Mr. Lawson and the background of the Panel Members, the Board considers that these are without merit and dismisses them. The Board notes in that regard that while Mr. Bodnar raised these issues, he did not pursue them or provide any authority in support of their legitimacy.
Based on all of the foregoing reasons, this Panel concludes that Mr. Bodnar has not satisfied the legal tests respecting bias, which means that the constitution of this Panel is proper from a legal viewpoint. However, in this case, the Panel recognizes that because two of three of us were involved in the original hearing and decision, some Albertans may perceive a bias. Indeed, some of the participants have told us they do. At he same time, the Panel recognizes that it has an obligation to other participants in the process, who wish to proceed without delay with this very important matter. Additionally, this R&V has been granted not to correct an error in law or otherwise but, rather, to receive additional information respecting the corridor issue that may not have been available to the original decision-making panel.
For this reason, the Panel believes that continuity with the initial decision is important and needed, and that is best accomplished by having at least one of the decision makers from the original hearing involved in this hearing.
Given these competing interests and objectives, the Panel has determined the course of action that strikes a balance. This Panel has concluded that a different panel, comprised of a majority of members who were not involved in the original decision, would balance the issue of the perception of bias with the issue of continuity. Having reached this conclusion and recognizing that many hearing participants wish to proceed without delay, the Panel contacted the Chairman of the Energy and Utilities Board and recommended that a different panel be established for the purpose of this review. The Chairman has appointed a different panel, comprised of myself, Brad McManus, and Board Members Jim Dilay and Tom McGee.
The Panel is thus closing this hearing. The new panel will open a new hearing in ten minutes.
Thank you.
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APPENDIX E EUB RULINGS ON PRELIMINARY AND INTERLOCUTORY MOTIONS
We have a number of motions. The first one was presented by Mr. Anglin and others. On August 31, Mr. Anglin and several parties raised questions with respect to the notice and revised notice issued by the Board with respect to this proceeding. As the Board understands it, the concerns about notice are based on two grounds: First, it has been asserted that the process by which the Board decided to notify interested parties of its intention to conduct this proceeding was inadequate; in other words, it has been asserted that parties that may be affected by the Board's decision in this matter were not notified of the proceeding. Second, it has been asserted that the content of the notice document itself was inadequate. The Board considers that the starting point for assessment of the adequacy of the notice in this proceeding is Section 47(7) of the Board's Rules of Practice which state that:
"A notice of review under subsection 6 must contain the same information as is contained in a notice of hearing."
Mr. Bodnar, on behalf of his clients, has asserted that subsection 7 requires that a notice of review must contain the exact same information that was included in the initial notice of hearing.
The Board disagrees with this interpretation and specifically finds that subsection 7 does not require that identical notices be issued for a notice of hearing in the first instance and any notice issued in relation to a subsequent review.
Rather, the Board interprets this section to mean that when issuing a notice in relation to a review proceeding, that notice must contain the same type of information that would be included in a notice of hearing in the first instance. The Board finds support for this interpretation in Section 22 of its rules which describe what type of information must be included in a notice of hearing. For instance, both types of notice must be in writing, briefly describe the subject matter of the hearing, indicate the date, time and place of the hearing, et cetera. The Board considers that subsection 7 was drafted to ensure that there is consistency of process for giving notice for hearings in the first instance and hearings of reviews.
In coming to a determination on both of the issues raised with respect to notice, the Board considers it germane that this is not a hearing of an application in the first instance; rather, it is a hearing to review specific findings made by the Board in Decision 2005-31. As in all proceedings, the Board must consider who may be adversely affected by its decision when determining to whom notice must be provided.
With respect to a review proceeding, the Board considers that the parties that may be adversely affected by its decision are the parties that requested the review, including Lavesta and any parties that participated in the original decision.
In this proceeding, the Board provided direct notice to all of the parties that fit those descriptions, including Lavesta, and in that notice expressly limited participation in the proceeding to such parties. As the Board understands it, all those parties were present at the start of this proceeding to provide their input to the Board. In the Board's view, directly affected parties1 were provided with notice of its intention to consider this proceeding and therefore dismisses the first ground of the motion with respect to notice.
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Over and above meeting the minimum requirements for notice, and in order to provide the greater public with information regarding this process, the Board also published its notice in a number of newspapers and held a number of public information sessions. This leads us to the adequacy of the content of the notice. Mr. Bodnar and others have asserted that the notice and revised notice did not provide enough information to allow participants to understand the nature of the decision the Board intended to make. Specifically those parties asserted that the lack of a map attached to the notice rendered the notice inadequate
The Board finds that its notice and revised notice for this proceeding cannot be understood to exist in a vacuum. It notes in that regard that notice of this proceeding was provided to parties that had been fully engaged in the Board's process on this issue for some time prior to the notice being issued. All parties that received the notice and revised notice had either been fully engaged in the Board's stage 1 review process or advised of the stage1 review process. All of the parties who requested a review of the proceeding, including Lavesta, specifically referenced the West Corridor in their requests.
The Board finds that it is reasonable to expect that the notice and revised notice would be received and understood within the context of the ongoing process that the parties were engaged in. Given this context, the Board considers that the content of the notice adequately describes the decision the Board intended to make at this proceeding and the powers it intended to exercise. The Board, therefore, dismisses the second ground for adjournment.
Now, I would like to turn to a motion made by Mr. Lawson. Mr. Lawson requested the Board allow him to fully participate in the proceeding as an intervenor, and has also requested the Board adjourn the proceeding to allow him time to engage new counsel and experts; specifically he wishes to present information regarding the environment and historical issues in the Battle Lake area. As the Board understands it, Mr. Lawson was previously a member of UPTAG and had some initial involvement in providing instructions to its counsel regarding the preparation of evidence. The reason Mr. Lawson is seeking separate legal representation is that he would like to present evidence regarding the historical environmental issues at Battle Lake. When making a determination on an adjournment request, the Board must balance the prejudice that such a decision would have on all of the parties to the proceeding.
In this case, the Board finds that the prejudice to interested parties, should the Board adjourn the hearing, far outweighs the prejudice that Mr. Lawson may experience should the hearing proceed. The Board considers that Mr. Lawson has been actively involved in the review process since at least November of 2005. He engaged competent counsel who has appeared before this Board on behalf of landowners on numerous occasions and apparently was happy with that representation until just before the proceeding. The Board also understands that he continues to fully support the intervention prepared on his behalf by his counsel. In Mr. Lawson's own words, the only additional evidence he would like to present to the Board relates specifically to the Battle Lake area. Based on the foregoing, the Board has denied Mr. Lawson's request for an adjournment. Regarding Mr. Lawson's ongoing participation in this proceeding, the Board has clearly stated that full participation in this proceeding would be limited to the review applicants and the original parties to the hearing in the first instance. While Mr. Lawson fits in neither of those categories, the Board is prepared to make an exception and allow him to participate because of his long involvement in the matter and his previous association with UPTAG.
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There were also submissions made by Mr. Anglin with respect to his legal advice. And it's with respect to Mr. Anglin's request for an adjournment to allow him an opportunity to resolve issues of legal representation. As the Board understands it, Mr. Anglin is a member of both UPTAG and Lavesta and his issues relate to the representation of UPTAG by the Ackroyd firm. Mr. Anglin submitted that confidential information had been provided to Ackroyd, specifically impact statements. Mr. Anglin also questioned legal advice provided by Ackroyd. Mr. Hanson and Mr. Slomp supported his position. Mr. Anglin indicated that he intends to pursue the matter with the Law Society of Alberta. The Board agrees that that may be the most appropriate forum to raise concerns as the Board has no jurisdiction to address matters raised by Mr. Anglin. The Board does not consider that an adjournment is appropriate in the circumstances.
The Board finds that Mr. Anglin has not demonstrated that he'll be prejudiced by continuing with the hearing. The Board notes that this is not a situation where Mr. Anglin has been deprived of counsel as he is well represented by Mr. Bodnar. Next item is the First Nations motion. The Board received a request from the Samson Cree First Nation to move this proceeding to Pigeon Lake for a day or two to allow elders in that vicinity to make representations to this panel. The Board has thought carefully about this matter and it has decided that it would not be fair to other participants to take this step. The Board decided to hold this hearing in Red Deer because it was located centrally and allowed reasonable access to all interested parties.
The Board appreciates the time and effort that the many interested parties have expended in travelling to this hearing each day. While the Board understands there may be some inconvenience associated with the elders travelling here, the Board would appreciate receiving any relevant information they wish to provide in the same manner made available to other members of the public during this proceeding. The Board understands Mr. Graves is attempting to arrange for brief, high-level submissions, possibly for Thursday of next week.
Now, I'll turn to what's been referred to as the omnibus motion because it involves a number of aspects. On behalf of the Lavesta Area Group, Mr. Bodnar made a series of motions, which came to be known as the omnibus motion, to alternatively adjourn this proceeding or rescind Decision 2005-31. These motions were started on July 31, 2006, at page 159 of the transcript, interrupted by the bias motion and completed on August 2nd at page 190 of the transcript.
The First Nations supported the adjournment request; UPTAG and ATCO took no position with respect to the motion and it was opposed by the AESO, AltaLink, EPCOR, TransAlta, the City of Calgary and the Lochend to Langdon/566 group. Counsel speaking in opposition enumerated the Lavesta concerns and provided specific transcript references to them. Counsel for Lavesta acknowledged that those submissions accurately captured his clients' concerns. For convenience sake, the Board will use the numbering provided to assist with referencing the various matters. The Board notes that Lavesta did not specify the remedy it was seeking for each of the objections made, but the Board understands that these submissions were generally raised in support of a recision of Decision 2005-31 or, alternatively, an adjournment of this proceeding. I'll start with the items raised on July 31. At page 161 of the July 31st transcript, Mr. Bodnar stated that there had been a serious series of misrepresentations to the public in these proceedings commencing with the application through to the outcome where we're at currently. AESO referred to this as a serious and troubling accusation without any facts in support. TransAlta counsel labelled the allegations as audacious. The Board finds that this allegation was not supported by any facts and therefore finds it to be groundless and dismisses this objection. At page 162 of the transcript, Mr. Bodnar alleged that there were serious contradictions in fact and law associated with these
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proceedings. Again, the Board finds that the allegations were not supported by any facts and therefore finds it to be groundless. Number 3. At page 163 of the transcript, Mr. Bodnar stated: "It's our respectful submission there's even been attempts to intimate Lavesta here into backing away from the position it takes. In particular, sir, I refer to the letter that Mr. McKee wrote dated June 30th, 2006, respecting the issue of cost and the budget that we submitted and suggested that we weren't playing by the rules, so to speak, and therefore that we may be at risk for entitled to claim costs." I did speak to this matter on the record and I will confirm, the Board rejects the notion that the provision of such feedback could reasonably be construed as intimidation. It is the Board's practice to provide interested parties with feedback regarding budgets filed, a fact that was confirmed by other counsel. The sole purpose of the Board's budget process is to provide participants with increased certainty regarding cost recovery. The Board regrets that Lavesta interpreted this letter as an amendment to intimidate because that was clearly not the Board's intention. Regardless, the Board does not consider this to be a ground for either an adjournment or recision of Decision 2005-31. At page 163 of the transcript, Mr. Bodnar stated:
"The system is being manipulated to achieve the end desired result at the expense of the public."
Again, the Board finds that this allegation was simply not supported by any facts and therefore finds it to be groundless. Number 5. At page 163, Mr. Bodnar asserted that Lavesta intends to present evidence of poor transmission planning in the past. The Board does not see this as grounds for an adjournment or recision of Decision 2005-31.
Number 6. At page 164, Mr. Bodnar suggested that various maps pertaining to the project had been filed leading to confusion. While this may be accurate, the Board finds that this is not an appropriate ground for an adjournment.
Number 7. At page 192 of the August 2nd transcript and elsewhere, Mr. Bodnar has alleged that there was a demonstrated obstinence to open up this hearing to considerate the issue of need. This panel has repeatedly made it clear that transmission need is beyond the scope of this proceeding, and this panel has no jurisdiction to expand the scope as requested by Mr. Bodnar.
Number 8. At page 167 of the July 31st transcript, Mr. Bodnar alleged that the Board does not have the jurisdiction to define corridors. The Board is empowered by section 34 of the Electric Utilities Act to approve the need brought forward by the AESO, EUB directive 28 requires the AESO to assess corridor considerations, including high-level landowner and agricultural issues. The Board is satisfied it has adequate jurisdiction in this regard and dismisses this ground.
At page 172, Mr. Bodnar alleged that notice of hearing for a review hearing must contain the information that the original hearing must contain. The same Board has addressed this ground earlier and repeats again that it finds it to be without merit.
Number 10. At page 190 of the August 2nd transcript, Mr. Bodnar questioned what the nature of this proceeding is. The Board considers there should be no confusion that this is a review hearing to allow the Board to hear new or previously unavailable evidence regarding the suitability of the West Corridor. The Board does not consider this to be a ground for adjournment.
Number 11. The page 191, Mr. Bodnar objected to the order of presentation set by the Board and stated that the evidence of the AESO and AltaLink should precede that of his clients. Lavesta was one of the applicants for review. The AESO and AltaLink are respondents in this
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proceeding. As in all of the Board's proceeding, the applicant provides its evidence prior to the respondent. The Board does not consider this to be grounds for an adjournment.
Number 12. At page 192, Mr. Bodnar stated his intention to subpoena four witnesses to give evidence in this hearing. The Board directed Mr. Bodnar to make his request in writing and to describe why the evidence being sought may be material and relevant. In any event, the Board does not consider this to be grounds for an adjournment.
Number 13. At page 193, Mr. Bodnar alleged that he was denied the right to cross-examine two of UPTAG's expert witnesses. The Board notes that Mr. Bodnar was extended the same opportunity to cross-examine as other counsel. The Board finds that this ground for adjournment is without merit.
At page 194, Mr. Bodnar expressed his concern that those opposed to the West Corridor have the onus of demonstrating that it is unsuitable for future transmission development. Lavesta is an applicant in this proceeding. It has requested that the Board vary or rescind decision2005-31. The Board considers that it's incumbent upon Lavesta to provide evidence to support its request to rescind or vary that decision; however, the Board agrees with counsel that the technical issue of burden of proof can be addressed in argument. It does not consider this to be grounds for an adjournment.
At page 196, Mr. Bodnar alleged that the Department of Energy's participation in the original proceeding tainted that proceeding. The Board finds that this allegation was not supported by any facts. However, if Mr. Bodnar wishes to pursue this concern, the Board suggests that his remedy is to seek new review or variance to appeal on this issue.
This panel, as has been repeated many times, does not have the authority to expand the scope of this hearing. Number 16. At page 198, Mr. Bodnar alleged that the entire process of the review was tainted to the point of being patently unreasonable. The Board notes that this reference is to a standard of review used by the courts to determine what difference, if any, ought to be accorded to decisions of an administrative tribal. However, again, the Board finds that this allegation was not supported by any facts and does not consider it to be grounds for an adjournment.
Lastly, at page 171 of the July 31st transcript, Mr. Bodnar repeated his concerns regarding the180 day time frame provided by section 28 of the transmission regulation. The Board considers that this matter has been fully addressed by the Board in response to what Lavesta characterize as a notice of motion but which was considered by the full Board as a review and variance application. The Board's reasons in that regard are contained in its letter to Lavesta dated July 26, 2006. This panel does not intend to address this matter further.
Thank you. Those are the Board's reasons. I appreciate your patience.
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