KINGMAN - After nearly two hours of discussion, the Arizona Corporation Commission unanimously granted Hualapai Valley Solar a conditional Certificate of Environmental Compatibility Wednesday afternoon.
Final approval of the CEC for Hualapai Valley's 340-megawatt concentrated solar plant near Red Lake depends on the outcome of a procedural conference before the ACC's Hearing Division. The conference will determine whether the due process rights of two Mohave County women were violated when the Line Siting Committee, a subcommittee of the ACC, denied them the right to intervene in the process.
The LSC held public hearings on the proposed power plant in Kingman in January. At that time, residents Denise Bensusan and Susan Bayer applied to become interveners. Their request was denied after a vote to grant them intervener status failed for lack of a second. The women were allowed to testify about their concerns of the plant's water use and impact on the local environment, but were not allowed to cross-examine witnesses or bring forth experts to support their claims.
The conversation at Wednesday's ACC meeting centered on whether the LSC improperly denied the women the right to intervene.
"I was absolutely flummoxed to hear that the Line Siting Committee didn't allow Ms. Bensusan to participate," said Tim Hogan, who was representing Bensusan before the ACC Wednesday. Hogan is also the executive director for the Law in the Public Interest. He has participated in a number of LSC and ACC hearings and has never seen a person denied the right to intervene in the process, he said.
Bensusan had numerous conversations with the chairman of the LSC about the proper way to gather and present her case to intervene before the committee, he said. "She did everything she was asked to do. She has a direct and serious interest in this project," he said.
Some LSC members cited a lack of legal training on the part of Bensusan and Bayer, Hogue said. Bayer is a paralegal. And the committee has heard testimony in other CEC cases from residents who had no legal training at all. "You've got to wonder what's going on," he said. "There has never been a case that I've been involved in where allowing someone to intervene was a mistake. It's critically important that citizens be allowed to intervene."
Bayer said she too tried to meet all of the requirements set by the LSC. Being limited to testifying as a witness was an insult to all the research on the issue she had done, she said. There were several issues that were not brought up at the LSC hearings because she and Bensusan were not allowed to intervene, she said. "By not allowing citizens to intervene, it gives the appearance of the ACC giving a rubber stamp of approval for these projects," Bayer said. "It's almost discriminatory to anyone who wants to intervene."
ACC Chair Kristin Mayes agreed with Hogue.
"In the seven years I have served on this committee, I've never seen someone denied the right to intervene," she said. "It's not like we're being overrun by people wanting to intervene in these cases." The LSC had worked very hard with Hualapai Valley on the proposed CEC, she said, but she was puzzled as to why the LSC had denied the right to intervene. ACC commissioners Bob Stump and Paul Newman agreed.
"Interveners add a lot to the process. They bring us back into the neighborhoods and communities. Some of these projects are in some very far-flung areas," Newman said.
Newman asked what could be done to remedy the situation, could the ACC send the case back to the LSC, would it have to deny the CEC because of a possible violation of Bensusan and Bayer's due process rights and force Hualapai Valley to start the CEC process again, or could the ACC hold a procedural hearing, listen to Bensusan and Bayer and then make a decision?
The ACC can't make a decision without a balanced record, and the record in this case didn't appear to be balanced, said Janet Alward, chief legal counsel for the ACC. There was no reason to deny these women the right to intervene, she said.
There is no process to remand the case back to the LSC, Alward said. She recommended the ACC conditionally approve the CEC, reopen the case and send it to the ACC's Hearing Division for review to allow Bensusan and Bayer to reapply as interveners.
The commission then heard comments from several residents and elected officials about the proposed plant.
Kingman Mayor John Salem talked about the proposed memorandum of understanding to sell treated wastewater to Hualapai Valley to offset the amount of groundwater the plant would use.
County Manager Ron Walker told the commission that Hualapai Valley had met all of the requirements to date that the Board of Supervisors and Planning and Zoning Commission put on them. The plant still had to meet several building and zoning requirements before it could be built, he said.
Newman asked Walker about several comments made by Bensusan and Bayer that there was a conspiracy by the county and Hualapai Valley to fast-track the plant through the zoning approval process.
"I can't speak to that because I don't know what they're talking about. I'd have to see some hard evidence," Walker said.
When asked about the water situation, Walker said the county has a policy that requires all power plants to be air-cooled, if an aquifer was in depletion. The Arizona Department of Water Resources report for a residential development originally planned for the site showed that the aquifer was not in depletion, he said.
After further discussion on how to remedy the possible due process rights violation and the addition of two minor amendments to the original CEC, the commission unanimously voted for a conditional CEC and ordered that the Hearing Division reopen the issue.
"I hope this sends a sign to the Line Siting Committee," Mayes said.
"If this happens again, it's not good for the applicant, it's not good for the community, and it's not good for the committee, which does good work."