Commissioner James Danly Statement
December 16, 2021
Docket No. CP17-458-012
I dissent from today’s order directing an Administrative Law Judge (ALJ) to “conduct whatever proceedings may be appropriate” to determine the activities Midship Pipeline Company, LLC (Midship) should complete to address specific restoration issues on Sandy Creek Farms’ property and at what cost.[1]
The majority appears to believe this ALJ proceeding is necessary to “provid[e] clarity on the outstanding issues”[2] and “develop[] a record as to the necessary measures and their cost [to] assist [the Commission] in evaluating what further remediation is required and what further steps to take to resolve the issues here.”[3] The majority also states that establishing this ALJ proceeding is “the most efficient way to ensure the required restoration moves forward.”[4] I do not agree.
This order does no more than direct the ALJ and the parties to go figure it out. The order establishes an ALJ proceeding—whatever it may be—to develop a record on issues which it never explicitly identifies. And while the majority directs the ALJ to “determine the necessary steps and work activities . . . to address the scope of restoration listed in the Commission staff’s July 13, 2021 Environmental Compliance Monitoring Report,”[5] the outstanding requirements identified by environmental compliance monitoring reports are not that easy to discern. They do not include fixed checklists identifying the tasks to be completed.
I suspect that the establishment of this ALJ proceeding is really no more than a maneuver to extend already protracted negotiations in order to avoid a contentious vote—i.e., the Commission itself determining what restoration activities remain and what action to take if Sandy Creek Farms continues to prefer to self-perform and the parties have not reached an agreement on cost.
I, for one, am willing to consider the parties’ arguments and make a decision. There is no need to further burden the parties with additional expense and uncertainty that attend ALJ proceedings. The Commission can simply establish a paper hearing to determine what reasonable restoration activities are necessary for Midship to conduct in order to bring itself into compliance with its certificate, needing no more than initial and reply comments to develop the record. We have certainly answered much more complicated questions than those presented here on paper records.
For these reasons, I respectfully dissent.