Minnesota Certificate of Need (8-MN-c)
Through the Certificate of Need proceedings the applicant (developer) must demonstrate using a number of factors prescribed in the rules that the proposed facility is in the best interest of the state’s citizens. The applicant (developer) must also demonstrate there is not a more prudent and reasonable way than the proposed project to provide the stated goals. Minnesota Public Utilities Commission - The Certificate of Need Process Guidance.
Certificate of Need Process
8-MN-c.1 to 8-MN-c.2 – Is the Proposed Project a “Large Energy Facility”?
A developer must obtain a Certificate of Need from the Minnesota Public Utilities Commission (“MPUC”) to site or construct a large energy facility. Minn. Stat. §216B.243(2); Minn. Admin. R. §7849.0030(1). . A “large energy facility” includes, but is not limited to:
- “…any high-voltage transmission line with a capacity of 200 kilovolts or more and greater than ten (10) miles of its length in Minnesota or that crosses a state line…” or
- “…any high-voltage transmission line with a capacity of 200 kilovolts or more and greater than 1,500 feet in length…”
A Certificate of Need is required for new large high-voltage transmission lines, which includes associated facilities necessary for normal operation of the conductor, such as insulators, towers, substations, and terminals, and for the expansion of large high-voltage transmission facilities when the expansion is itself of sufficient size to come within the definition of “large high-voltage transmission line.” Minn. Admin. R. §7849(14); Minn. Admin. R. §7849.0030(1).
8-MN-c.3 – Does an Exemption Apply?
A developer does not need to obtain a Certificate of Need, from the MPUC, if the facility is:
- A high-voltage transmission line proposed primarily to distribute electricity to serve the demand of a single customer at a single location, unless the applicant (developer) opts to request that the MPUC determine need under Minn. Stat. §216B.243 or Minn. Stat. §216B.2425;
- The upgrade to a higher voltage of an existing transmission line that serves the demand of a single customer that primarily uses existing rights-of-way, unless the applicant (developer) opts to request that the MPUC determine need under Minn. Stat. §216B.243 or Minn. Stat. §216B.2425; or
- A high-voltage transmission line of one mile or less required to connect a new or upgraded substation to an existing, new, or upgraded high-voltage transmission line.
For a complete list of exemptions, see: Minn. Stat. §216B.243(8).
8-MN-c.4 - Proposed Notice Plan
Prior to submitting a Certificate of Need Application with the MPUC, the applicant (developer) must first file a notice plan with the MPUC. The applicant (developer) must file the notice plan three (3) months or ninety (90) days before filing the actual Certificate of Need Application. Minn Admin. R. §7829.2550(1); Minnesota Public Utilities Commission - The Certificate of Need Process Guidance.
8-MN-c.5 – Publish Notice of Intent to File Certificate of Need Application
The applicant (developer) must provide notice of intent to file a Certificate of Need Application with the MPUC to potentially affected persons. Minnesota Public Utilities Commission – Certificate of Need Process Chart for Large High-Voltage Transmission Facilities. The notice must include information on how individuals may comment on the proposed notice plan. Interested individuals may comment on the proposed notice plan for a period of time as allocated by the MPUC. Minnesota Public Utilities Commission - The Certificate of Need Process Guidance.
8-MN-c.6 – Certificate of Need Application
The developer must submit a Certificate of Need Application (“Application”) to the MPUC. Minn. Stat. §216B.243(4); Minnesota Public Utilities Commission - The Certificate of Need Process Guidance. The Application must include, at minimum, the following:
- A draft environmental report pursuant to Minn. Admin. R. §7849.0230. Minn. Admin. R. §7849.0230;
- A summary of the major factors that justify the need for the proposed facility (high-voltage transmission line) in accordance with Minn. Admin. R. §7849.0240(1);
- An explanation of the relationship of the proposed facility to each of the following socioeconomic considerations:
- socially beneficial uses of the output of the facility, including its uses to protect or enhance environmental quality;
- promotional activities that may have given rise to the demand for the facility; and
- the effects of the facility in inducing future development.
- A description of the type of general location of the proposed line, pursuant to Minn. Admin. R. §7849.0260;
- A discussion of the availability of alternatives to the facility, as described in Minn. Admin. R. §7849.0260(B);
- A map (of appropriate scale) showing the applicant's (developer) system or load center to be served by the proposed large high-voltage transmission line;
- Pertinent information concerning peak demand and annual electrical consumption pursuant to Minn. Admin. R. §7849.0270;
- A description of the ability of the developer’s existing system to meet the demand for electrical energy forecast and the extent to which the proposed facility will increase this capacity, pursuant to Minn. Admin. R. §7849.0280;
- A description of the developer’s energy conservation and efficiency programs pursuant to Minn. Admin. R. §7849.0290;
- Environmental data for the proposed facility and for each alternative considered in detail pursuant to Minn. Admin. R. §7849.0300;
- Data regarding each alternative that would involve construction of a large high-voltage transmission line pursuant to Minn. Admin. R. §7849.0330; and
- Data regarding a no-facility alternative pursuant to Minn. Admin. R. §7849.0340.
Any developer submitting an Application must also submit a separate page with the Application that includes a brief summary of the filing. The summary must be sufficient to apprise potentially interested parties of the Application’s nature and general content. Minn Admin. R. §7829.2500(2).
The developer must file the original and thirteen (13) copies of the Application with the MPUC. The developer must provide copies of the Application to other state agencies with regulatory responsibilities in connection with the proposed facility and to other interested persons who request copies. The developer must maintain a distribution list of the copies. The developer must also file the Application in accordance with form described in Minn. Admin. R. §§7849.0200(2). Minn. Admin. R. § 7849.0200(2).
The developer must also submit a copy of the Application materials to the Minnesota Department of Commerce (“Department of Commerce”) for environmental review purposes. The developer must provide the commissioner of the Department of Commerce with an electronic version of the Application material suitable for posting on the commissioner’s webpage. Minn. Admin. R. § 7849.0200(1). The applicant (developer) must submit with the Application materials a minimum payment of $5,000 to the commissioner at the time the Application is filed with the MPUC for cost required to conduct the environmental review. Minn. Admin. R. § 7849.2100.
Additionally, the developer must submit a copy of the Application material to the Office of the Attorney General, as well as those persons on an applicable general service list, and those persons who were parties to the developer’s last general rate case or incentive plan proceeding, if applicable. Minn Admin. R. §7829.2500(3). The developer must also publish notice of the Application filing in newspapers of general circulation throughout the state. Minn Admin. R. §7829.2500(5).
Generally, these notices must be served or published by the developer within one week of the filing date.
8-MN-c.7 to 8-MN-c.10 – Review Application Materials for Completeness
The MPUC reviews the Application materials for administrative and technical completeness. The MPUC must notify the applicant (developer) within thirty (30) days of the receipt of the Application if the Application is not substantially complete. On notification, the applicant (developer) may correct any deficiency and may resubmit the Application. If the revised Application is substantially complete, the date of its submission is considered the Application date. Minn. Admin. R. §§7849.0200(5).
The MPUC or more broadly the Department of Commerce must also provide notice of the Application submission. Minnesota Public Utilities Commission - The Certificate of Need Process Guidance.
8-MN-c.11 – Comment on Application (If Applicable)
After the developer has served and published notice of the Application, the MPUC may request the public to comment on the Application, if the MPUC determines that comments would be helpful in evaluating the Application’s substantial compliance with applicable regulatory and statutory requirements. Minn Admin. R. §7829.2500(6). The amount of time the public has to comment is at the MPUC’s discretion, but the timeframe is usually between twenty (20) and thirty (30) days. Comments can be filed electronically, and comments submitted in any other manner are electrically filed by MPUC. After comments are submitted, the developer generally has seven (7) to ten (10) days to reply to the comments.
8-MN-c.12 – Initiate State Environmental Review
Upon receipt of the Application materials the commissioner of the Department of Commerce must initiate the state environmental review process for a Certificate of Need. Minnesota Public Utilities Commission - The Certificate of Need Process Guidance. The Department of Commerce starts the environmental review process at the same time the MPUC reviews the Application materials for completeness. For more information regarding Minnesota’s state environmental review process, see:
8-MN-c.13 to 8-MN-c.15 – Provide Notice of Public Meeting
The MPUC is required to hold at least one public hearing on the Application, pursuant to Minn. Stat. §14. Minn. Stat. §216B.243(4); Minn Admin. R. §7829.2500(9). Generally, the public meeting must be held within forty (40) days after receipt of an Application for a Certificate of Need. At least fifteen (15) days prior to the meeting, the MPUC publishes notice of the meeting to those persons listed above who require notice of the purposed project. The MPUC also publishes notice of the meeting in a newspaper of local circulation in the area at least ten (10) days before the meeting, and on the EQB Monitor as well as the Minnesota – Department of Commerce – Energy Environmental Review & Analysis Webpage. The public meeting must be held in a location that is convenient for persons who live near a proposed project. Minn. Admin. R. §7849.1400(3).
The MPUC must make available at the public meeting a copy of the Certificate of Need Application. The MPUC’s staff must explain the process for preparation of the Environmental Report. Minn. Admin. R. §7849.1400(4).
At the public meeting, meeting participants may also help scope the ultimate Environmental Report by suggesting project alternatives to consider. Minnesota Public Utilities Commission - The Certificate of Need Process Guidance. In addition, the public must be afforded an opportunity to ask questions and present comments and to suggest alternatives and possible impacts to be evaluated in the Environmental Report. The MPUC must keep an audio recording of the meeting. Minn. Admin. R. §7849.1400(4). The developer must provide representatives at the public meeting who can respond to questions about the proposed project. Minn. Admin. R. §7849.1400(5).
The MPUC must provide at least twenty (20) days from the day of the public meeting for the public to submit written comments regarding the proposed project. Minn. Admin. R. §7849.1400(4).
Note: If the proposed project also requires a Route Permit, this meeting may be held jointly for both the Route Permit, and the Certificate of Need. Additionally, if the proposed project requires a Route Permit and the project meets certain specifications, the Department of Commerce may elect to prepare an Environmental Impact Statement (EIS) or an Environmental Assessment (EA) in lieu of the Environmental Report. The public meeting requirements will differ pending on whether the Department of Commerce prepares an Environmental Report, EA or EIS. Minn. Admin. R. §7849.1900(2); Minn. Admin. R. §7849.1900(1). For more information, see:
8-MN-c.16 – Does the MPUC Elect to Hold an Informal or Expedited Proceeding?
After the Department of Commerce conducts a state environmental review and the MPUC receives the resulting Environmental Report, Environmental Assessment (“EA”), or Environmental Impact Statement (“EIS”) from the commissioner of the Department of Commerce, the MPUC must conduct either a contested case proceeding, or an informal or expedited proceeding. Minn. Admin. R. §7849.1800(1); Minnesota Public Utilities Commission - The Certificate of Need Process Guidance. The commissioner’s staff must participate in the MPUC proceeding to respond to comments about the state environmental review. Minn. Admin. R. §7849.1800(1).
The MPUC may choose to evaluate the Application through an informal or expedited proceeding when a contested case proceeding is not required, for example, when:
- There are no material facts in dispute;
- The developer, other parties and the MPUC have agreed to informal or expedited proceedings; or
- Informal or expedited proceedings are authorized or required by statute.
8-MN-c.17 to 8-MN-c.18 – Provide Notice of Informal or Expedited Proceeding
The MPUC must notify persons on the official service list of the proceeding at least ten (10) days before the proceeding. The executive secretary of the MPUC reduces the notice period under exigent circumstances. Minn Admin. R. §7829.1200(3).
At the informal or expedited proceeding, written submissions are the preferred method of introducing facts, but the MPUC allows oral presentation of fact when it can be done without compromising the rights of any person or the integrity of the proceeding. If the MPUC is conducting an informal proceeding, factual allegations must be made under oath, or by affirmation when facts appear to be in dispute. If the MPUC is conducting an expedited proceeding, factual allegations must be made under oath or affirmation, and documents filed in the proceeding must be verified. Minn Admin. R. §7829.1200(2).
8-MN-c.19 – Request Administrative Law Judge (ALJ)
If the MPUC does not elect to hold an informal or expedited proceeding, a contested case is held instead. If the MPUC holds a contested case hearing, the MPUC must request an ALJ from the Minnesota Office of Administrative Hearings (“OAH”) to oversee the proceeding. Minnesota Public Utilities Commission - The Certificate of Need Process Guidance.
8-MN-c.20 to 8-MN-c.23 – Publish Notice of Contested Case Hearing and Pre-Hearing Conference
Once the OAH assigns an ALJ for a contested case hearing the parties first meet at a pre-hearing conference. At this pre-hearing conference, the parties discuss procedural issues including an intervention deadline for requesting formal party status, discovery, locations of public and evidentiary hearings, and a schedule for a hearing. The ALJ must publish notice of the contested case hearing and the pre-hearing conference. Minn. Stat. §§14.59; Minnesota Public Utilities Commission - The Certificate of Need Process Guidance.
During the contested case proceeding, the formal parties may present witnesses and offer testimony. Additionally, the parties may also cross-examine witnesses the other parties offer. During this period, there is also an opportunity to comment on a particular project via the mail or email. The comments and evidence gathered at any of the venues described previously will be entered into the record of the hearing. Minn. Stat. §§14.60. These meetings may be part of a joint proceeding for both the Certificate of Need and Route Permit. Minnesota Public Utilities Commission - The Certificate of Need Process Guidance.
For more information regarding contested case proceedings follow the public hearing procedure outlined in Minn. Stat. §§14.57-14.62.
8-MN-c.24 to 8-MN-c.27 – Hearings Report
At the conclusion of the evidentiary hearing, public meetings, and comment period the ALJ produces a report. This report must be based on evidence that has been entered into the record. The ALJ provides notice to interested parties when the report is made available. After the completion of the ALJ’s report, the MPUC cannot make a decision on the Application until at least ten (10) days after the report has been made available to parties of the proceeding. This affords an opportunity for adversely affected parties to file exceptions and present arguments to the MPUC. Minn. Stat. §§14.61(1). At the end of the exceptions period parties have an additional ten (10) days to file responses to other party’s exceptions. Minnesota Public Utilities Commission - The Certificate of Need Process Guidance. The MPUC notifies all parties and the presiding ALJ that the contested case record has closed upon the receipt of an exception, or the expiration of the deadline for filing an exception. Minn. Stat. §§14.60(2).
8-MN-c.28 – Hold Final Meeting (If Applicable)
Next, the MPUC holds a final meeting to determine whether to issue a Certificate of Need. At this meeting the MPUC either follows the recommendations of the ALJ or it rules contrary. Minnesota Public Utilities Commission - The Certificate of Need Process Guidance. The MPUC’s decision must be in writing and must include the MPUC’s findings of fact and conclusions on all material issues. If the MPUC rejects or modifies the recommendations of the ALJ, the MPUC’s decision must include the reasons behind each rejection or modification. A copy of the MPUC’s decision must be served on each party and the ALJ. Minn. Stat. §§14.62(1).
If the MPUC does not make a decision within ninety (90) days after the record of the proceeding closes, the ALJ’s recommendations become the final decision, and the MPUC may be subject to disciplinary action. Minn. Stat. §§14.62(2).
8-MN-c.29 to 8-MN-c.31 – Assess Application
The MPUC’s final decision to accept or deny the Certificate of Need must be made within twelve (12) months of the submission the Application. The MPUC must provide a statement of reasons for the decision. Issuance of the Certificate of Need may be made contingent upon modifications required by the MPUC. If the commission has not issued an order on the Application within the twelve (12) months provided, the MPUC may extend the time period upon receiving the consent of the parties or on its own motion, for good cause, by issuing an order explaining the good cause justification for extension. Minn. Stat. §216B.243(5).
At the time the MPUC makes a final decision on the Certificate of Need Application, the MPUC must determine whether the Environmental Report, EA or EIS and the record created in the matter address the issues identified by the commissioner in the decision made pursuant to Minn. Admin. R. §§7849.1400(7). The MPUC may direct the commissioner to prepare a supplemental Environmental Report, EA, or EIS if one is prepared pursuant to Minn. Admin. R. §§7849.1900, if the MPUC determines that an additional alternative or impact should be addressed or supplemental information should be provided. Minn. Admin. R. §§7849.1800(2).
The MPUC must consider only those alternatives proposed before the close of the public hearing and for which there exists substantial evidence on the record with respect to each of the criteria listed in Minn. Admin. R. §§7849.0120. Minn. Admin. R. §§7849.0100.
The MPUC must grant a Certificate of Need on determining that the criteria outlined in Minn. Admin. R. §§7849.0120 is met. Some of the criterions listed in Minn. Admin. R. §§7849.0120 include, but are not limited to, the following:
- The probable result of denial would be an adverse effect upon the future adequacy, reliability, or efficiency of energy supply to the applicant (developer), to the applicant's (developer) customers, or to the people of Minnesota and neighboring states;
- A more reasonable and prudent alternative to the proposed facility has not been demonstrated by a preponderance of the evidence on the record;
- By a preponderance of the evidence on the record, the proposed facility, or a suitable modification of the facility, will provide benefits to society in a manner compatible with protecting the natural and socioeconomic environments, including human health;
- The record does not demonstrate that the design, construction, or operation of the proposed facility, or a suitable modification of the facility, will fail to comply with relevant policies, rules, and regulations of other state and federal agencies and local governments.
In addition, the MPUC may make the issuance of a Certificate of Need contingent upon modifications required by the MPUC. When an Application is denied, the MPUC must state the reasons for the denial. Minn. Admin. R. §§7849.0340.
8-MN-c.32 – Appeal Decision
Any applicant (developer), party or person aggrieved by the issuance of a Certificate of Need from the MPUC may file an appeal to the Court of Appeals within thirty (30) days after the Certificate issuance notice has been published in State Register in accordance with Minnesota – Minn. Stat. §§ 14 et seq., Administrative Procedure. Minn. Stat. §216E.03(15).
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