Facilities – Review and Variance
In this decision, the AUC denied the application from Ken Leskow, Mary Abbot, Len Nash, Erick Corkum, Ty Miller, Jason Bishop, and George and Marilynn Bishop (the “review applicants”) to review and vary AUC Decision 26171-D01-2021.
Review Application and Background
Decision 26171-D01-2021 (the “Decision”) relates to the proposed construction and operation of a 240 kilovolt (“kV”) transmission line, designated as Transmission Line 459L (the “Project”).
The review applicants stated that they have lands that will be crossed over, or are adjacent to, the route preferred by AltaLink Management Ltd. (“AML”) and approved by the AUC in the Decision. Five of the applicants filed statements of intent to participate (“SIPs”) and stated concerns with the impact of the Project on their lands or their use of the lands.
The review panel held that the following findings were made by the original hearing panel:
The preferred route will have a significantly lower overall impact than the alternate route, particularly since the preferred route parallels an existing transmission line for nearly 99 percent of its length, while only approximately three percent of the alternate route parallels an existing transmission line.
The preferred route is located in road allowances for much more of its length as compared to the alternate route.
The more extensive use of developed road allowances and paralleling an existing disturbance also resulted in the preferred route being more suitable than the alternate route from an environmental impact perspective.
The preferred route would be shorter and have fewer impacts on native vegetation and wetlands. For additional reasons discussed in the Decision, the hearing panel accepted that the environmental impacts of the routing options favoured approval of the preferred route.
The process and the AUC’s authority to review and vary decisions is set out in Section 10 of the Alberta Utilities Commission Act (“AUC Act”) and Section 5 of Rule 016: Review of Commission Decisions. In this proceeding, the AUC considered the preliminary question: deciding whether there are grounds to review the Decision.
Issues and Review Panel Findings
Section 5(1)(b) Grounds – Previously Unavailable Facts
The review applicants submitted that they have evidence that was not made available in the AUC’s hearing as the applicants were unaware of the hearing process. The applicants’ submission implied that the information in question is not new but is the same information that the review applicants would have provided to the hearing panel if they had participated in the hearing.
The AUC denied a review on these grounds, as it had not been indicted that there are previously unavailable or newly discovered facts that are material to the Decision.
Section 5(1)(d) Grounds – Decision Made Without Hearing or Notice
The review applicants asserted that the AUC failed to give proper notice of the hearing and this prevented them from filing evidence and participating in the hearing.
(a) Was notice of the hearing given to the review applicants?
The review panel noted that the review application was focused on the applicants’ difficulties accessing the AUC’s eFiling system and with email notifications from the system. The review panel noted that the original notice of hearing was mailed, not emailed, as no person had registered to participate in the eFiling system at the time of issuance. The AUC also noted that five of the eight review applicants took steps to file SIPs in Proceeding 26171 prior to the filing deadline. This strongly suggests that each of them had received notice of the hearing and understood the need to file submissions by the deadline.
The review panel found that notice of the hearing was given to the review applicants who met the test for standing set out in Section 9 of the AUC Act, in accordance with Section 7 of Rule 007.
(b) Did the notice of hearing provide adequate information about how to participate in the hearing in Proceeding 26171?
The review applicants submitted that they did not know what to do to participate in the hearing.
The review panel reviewed the information about participation, and the requirements to participate in the hearing provided to the review applicants. The review panel also noted that in May 2021, the AUC issued a letter setting out the protocols for the virtual AUC hearing followed by an anticipated schedule. The review panel found that the information included in the notices of hearing and the process letters issued from the eFiling system to persons who registered for the proceeding included adequate and understandable instructions on how to participate.
(c) Did the AUC process fail the review applicants, specifically the eFiling system?
Process failures identified by the review applicants include assertions that can be characterized as problems with the AUC’s eFiling system or the notifications that were issued to them by the system.
The review applicants submitted that they either did not receive proper assistance from AUC staff following requests for assistance. The AUC, however, found that there was insufficient evidence to support these claims. The submissions lacked sufficient particularity related to when and from who the review applicants requested assistance.
The review panel determined that the applicants did not submit sufficient evidence to allow for the conclusion that the process failed the applicants. Where sufficient information was provided regarding participants’ contact with the AUC, AUC staff assisted participants. The review panel was not persuaded that the review applicants took steps to have any problems experienced addressed by AUC staff.
In answering the preliminary question, the AUC found that the review applicants have not met the requirements for a review of Decision 26171-D01-2021 and the application for review and variance was dismissed.