Does state order lack 'teeth'?

By Anne Adams • Staff Writer

MONTEREY — At Tuesday's meeting to review Highland New Wind Development's plans, county attorney Melissa Dowd said county officials are concerned about whether HNWD is meeting conditions attached to its state permit, which was issued by the State Corporation Commission in December 2007.

"Unfortunately," she said, "the SCC has no enforcement mechanism."

Dowd said the SCC issues its permits, but doesn't go back to see whether conditions attached to them are met.

"I don't see that the (Technical Review Committee) has the ability to enforce the SCC order," she said, calling SCC's review a "totally separate administrative proceeding."

"The SCC's language is difficult," she added, pointing to examples of phrases like "an applicant is supposed to coordinate with agencies," and words like "protect" "work closely with" and "ensure."

"There's none of it that you can get your teeth into," she said.

The only issue she felt the TRC could consider is whether or not there's a permit missing that HNWD needs. "That is fair game," she told the committee, referring to the landowners' claim there were wetlands still unaddressed by the developer (see related story).

Wednesday, SCC's chief counsel William Chambliss said he disagreed with Dowd's opinion, noting the agency certainly does enforce its permits and orders, with injunctive actions when necessary. And, if county officials need help making sure HNWD is meetings its state requirements, all they have to do is ask.

"The SCC directed Highland New Wind to do what the permit says … they (the county) could ask us to enforce that," Chambliss told The Recorder Wednesday. Anytime an applicant fails to meet its conditions, he explained, they are subject to sanctions. "A violation has, generally, a monetary penalty. But the SCC also has injunctive powers — to have an applicant do something, or refrain from doing something … We enforce our orders."

However, he noted, it's true the SCC staff doesn't do much later in terms of checking to make sure every applicant is meeting every requirement. Usually, it relies on someone to make it aware of concerns. For example, he said, if a state reviewing agency "comes to us with concerns, then the commission can undertake proceedings … but we do not survey all the agencies. We rely on someone to bring it to our attention … We don't call them; we believe they will enforce the (conditions)."

It's also true the SCC does not write its orders with great detail as to how and when an applicant meets conditions. "These orders are written with some flexibility," he said.

But if anyone, including citizens, believes the orders are not being followed, they can notify the SCC, and the agency will take action. Sometimes, he noted, informal complaints are filed, and "we try to resolve these disputes with between companies informally." If that doesn't help, he said, the complaints are elevated to a formal process.

Typically, the SCC handles applications from larger utilities. Chambliss said those companies tend to want all their ducks in a row, because their generating plants are so costly to build.

"(HNWD) is just different," he said. "It's a mom and pop operation, and there are many things about this project that are different … But yes, the county could ask the commission to look into whether Highland New Wind is complying with its certificate."

Those with concerns, he said, can contact the head of the SCC Division of Energy Regulation, Bill Stevens, and "anyone who wants general information can call me."