CEQA requires that the Commission consider the environmental consequences before acting upon or approving the El Casco Project.4 Under CEQA, the Commission must act as either the Lead Agency or a Responsible Agency for project approval. The Lead Agency is the public agency with the greatest responsibility for supervising or approving the project as a whole.5 Here, the Commission is the lead agency. The actions and steps taken for environmental review of the El Casco Project, in accordance with GO 131-D and CEQA, are discussed below.
Pursuant to GO 131-D, Section IX.B.1.e, the application must include a PEA. SCE filed its PEA in this proceeding on February 16, 2007; the application was deemed complete on March 14, 2007. The PEA evaluates the environmental impacts that may result from the construction or operation of the Project.
The PEA found that no significant impacts would occur as a result of operations. However, the PEA noted that some impacts would occur to air quality during construction, including impacts exceeding the Southern California Air Quality Management District (SCAQMD) significance threshold for PM10 which could not be mitigated. SCE argued that these impacts would be temporary.6 The PEA proposed measures to be taken to reduce the impacts on air quality.
The Commission's Energy Division Staff (Staff) reviewed the PEA and issued a Notice of Preparation (NOP) on July 16, 2007 pursuant to CEQA Guidelines § 15082 to address the environmental issues related to the El Casco Project and to request comments from interested parties. The NOP noted that Staff had determined that an EIR would be required for the El Casco Project. The NOP was filed with the State Clearinghouse on July 16, 2007, and was issued an identification number (SCH# 2007071076), which initiated a 30-day public scoping period, which ended on August 14, 2007.7
Over 800 copies of the NOP were distributed to federal, regional, and local agencies; elected officials; and property owners within 300 feet of the Proposed Project alignment. Citizens and community organizations who expressed interest in the El Casco Project were also added to the mailing list. In addition, copies of the NOP were delivered to five public repository sites.8
Two public scoping meetings were held on August 1, 2007 - one in Banning, California and the other in Beaumont, California. These meetings were noticed in the NOP, in newspaper advertisements in five local newspapers, and by direct contact with ten potentially affected local and regional agencies. A public hotline, e-mail address and website were established.9
Based upon input from the public meetings and other contacts with the public, Staff issued a Public Scoping Report in September 2007, which is identified herein as Reference Exhibit A.
Staff prepared a Draft EIR, which Staff issued on December 12, 2007 and is identified herein as Reference Exhibit B. The Draft EIR analyzed the Proposed Project and a number of alternatives. Under CEQA, the key considerations in analyzing alternatives are: (1) whether the alternatives feasibly meet most of the project objectives; and (2) whether the alternatives have the potential to avoid or to substantially lessen any significant environmental impacts of the Proposed Project. Based upon these criteria, the Draft EIR identified and studied the environmental impacts of four possible outcomes: (1) the original Proposed Project; (2) an alternative identified in the PEA as Alternative Option 3 (Northerly Route); (3) a Partial Underground Alternative (PUA); and (4) the No Project Alternative (NPA). A number of other alternatives were eliminated from environmental consideration for reasons set forth in the Draft EIR and consistent with the CEQA guidelines.
The 21.8 mile Northerly Route would consist of: (1) rebuilding the entire El Casco-Maraschino 115 kV subtransmission line; (2) rebuilding a portion of the Banning-Maraschino 115 kV subtransmission line; and (3) creating the new El Casco-Banning and El Casco-Zanja 115 kV subtransmission lines from a combination of new construction and rebuilding a portion of the existing Devers-Banning-Windpark-Zanja 115 kV subtransmission line.
Under this route, 9.5 miles would be a new 115 kV subtransmission line located in an existing SCE transmission line corridor right-of-way (ROW) that currently consists of the Devers-San Bernardino No. 1 and No. 2 220 kV transmission lines, and the Devers-Vista double-circuit 220 kV transmission lines. The upgrades include 5.8 miles between the El Casco and Maraschino Substations in the same ROW as the Proposed Project. This alternative would avoid the Proposed Project's construction activities between the Maraschino and Banning Substations. Currently, SCE's existing single-circuit 115 kV subtransmission line in this area is only energized during emergency situations; under the Northerly Alternative, it would be energized at all times. The remaining 6.5 miles would occur between the Banning Substation and the "Zanja Break-off" on existing subtransmission line structures.
The PUA was developed in response to the residents of the Sun Lake Country Club community. It differs from the Proposed Project in one respect: it replaces the existing H-frame single-circuit 115 kV subtransmission line with an underground double-circuit 115 kV subtransmission line through approximately Mile 9.0 and Mile 10.0, the area in which the SCE ROW passes through the Sun Lake community. This alternative requires approximately 10 fewer steel poles but requires excavation of the underground line, as described in more detail below.
For the NPA, the Draft EIR considered that in order to avoid overload conditions in the Maraschino Substation service area, that SCE would need to add a third transformer and two 12 kV distribution line (each approximately 9 miles in length).
Under CEQA, the key questions are whether environmental impacts are significant and whether they can be mitigated to a level less than significant.
6.3.1. Environmental Analysis of the Proposed Project
The Draft EIR found that approval of the Proposed Project would result in significant direct impacts that could not be mitigated in the areas of air quality and noise. The Draft EIR found that approval of the Proposed Project would result in significant cumulative impacts that could not be mitigated in the areas of: air quality, biological resources; hazards and hazardous materials; hydrology and water quality; noise; and visual resources.
The Draft EIR found that approval of the Proposed Project would have no environmental impacts, or impacts that could be mitigated to a less than significant level, in the following areas: land use; cultural resources; geology, soils and seismicity; public services and utilities; transportation and traffic; mineral resources; population; and housing.
6.3.2. Environmental Analysis of the Northerly Alternative
The Draft EIR found that approval of the Northerly Alternative would result in significant direct impacts that could not be mitigated in the areas of: air quality; cultural resources; and noise. The Draft EIR found that approval of the Northerly Alternative would result in significant cumulative impacts that could not be mitigated in the areas of: air quality; cultural resources; hazards and hazardous materials; hydrology and water quality; noise and visual resources.
The Draft EIR found that approval of the Northerly Alternative would have no environmental impacts, or impacts that could be mitigated to a less than significant level, in the following areas: land use; biological resources; geology, soils and seismicity; public services and utilities; transportation and traffic; mineral resources; population; and housing.
The Draft EIR found that approval of the PUA would result in significant direct impacts that could not be mitigated in the areas of: air quality; land use; and noise. The Draft EIR found that approval of the PUA would result in significant cumulative impacts that could not be mitigated in the areas of: air quality; land use; biological resources; hazards and hazardous materials; hydrology and water quality; noise; and visual resources.
The Draft EIR found that approval of the PUA would have no environmental impacts, or impacts that could be mitigated to a less than significant level, in the following areas: cultural resources; geology, soils and seismicity; public services and utilities; transportation and traffic; mineral resources; population; and housing.
The Draft EIR found that approval of the NPA would result in significant direct impacts that could not be mitigated in the areas of air quality and noise. The Draft EIR found that approval of the NPA would result in significant cumulative impacts that could not be mitigated in the areas of: air quality biological resources; hazards and hazardous materials; hydrology and water quality; noise; and visual resources.
The Draft EIR found that approval of the NPA would have no environmental impacts, or impacts that could be mitigated to a less than significant level, in the following areas: land use; cultural resources; geology, soils and seismicity; public services and utilities; transportation and traffic; visual resources; mineral resources; population; and housing.
6.3.5. Environmentally Superior Alternative
The Draft EIR was confusing regarding the environmentally superior alternative,10 as the Executive Summary states that the Proposed Project was the environmentally superior alternative, while the analysis itself found that the PUA was the environmentally superior alternative.11 Upon review of the totality of the document, it is clear that the first reference was an error and that the Draft EIR found the PUA to be the environmentally superior alternative.
The Northerly Alternative had significant long-term historic, visual and cumulative impacts that were not present with the other alternatives, and so it was not superior. Of the remaining alternatives studied, the PUA was determined to have the least long-term impacts, to be superior in land use, noise and visual impacts, would improve the existing visual impacts, and would improve the long-term beneficial impacts of the recreational facility through which the line would be undergrounded. The impacts of the additional construction required to underground the line would be short term and largely mitigable.
The NPA was deemed not superior to the PUA because the NPA would still require construction of distribution lines, which would have similar environmental impacts.
As required by CEQA, the Draft EIR included a Mitigation, Monitoring, Reporting and Compliance Plan (MMRCP). The MMRCP describes the mitigation measures and specifically details how each mitigation measure would be implemented, and includes information on the timing of implementation and monitoring requirements. The Commission also uses the MMRCP as a guide and record of monitoring the utility's compliance with its provisions. The MMRCP adopted in this proceeding is that associated with the Recirculated Final EIR, with one exception (HAZ-10).
6.3.7. Electric and Magnetic Fields
The Commission also has examined EMF impacts in several previous proceedings. 12 We found the scientific evidence presented in those proceedings was uncertain as to the possible health effects of EMFs, and we did not find it appropriate to adopt any related numerical standards. Because there is no agreement among scientists that exposure to EMFs creates any potential health risk, and because CEQA does not define or adopt any standards to address the potential health risk impacts of possible exposure to EMFs, the Commission does not consider magnetic fields in the context of CEQA and determination of environmental impacts.
However, recognizing that public concern remains, we do require (pursuant to GO 131-D, Section X) that all requests for a PTC must include a description of the measures taken or proposed by the utility to reduce the potential for exposure to EMF generated by the proposed project. We developed an interim policy addressing the matter that requires utilities, among other things, to identify the no-cost measures undertaken, and the low-cost measures implemented, to reduce the potential impacts of EMF. The benchmark established for low-cost measures is 4% of the total budgeted project cost that result in an EMF reduction of at least a 15% (as measured at the edge of the utility right-of-way).
The Draft EIR addressed the EMF mitigation measures related to the Project. As "no and low-cost" mitigation measures, SCE would do the following:
1) Use taller poles for the proposed 115 kV subtransmission lines;
2) Use a "double-circuit" pole-head configuration for the double-circuit portions of the proposed 115 kV subtransmission lines;
3) Use a "triangular" type pole-head configuration for the single-circuit portions of the proposed 115 kV subtransmission lines;
4) Phase the proposed 115 kV subtransmission lines with respect to the adjacent existing subtransmission lines;
5) Phase the looped 220 kV transmission lines into the El Casco Substation; and
6) Place major substation electric equipment (such as transformers, capacitor banks, switchracks, etc.) away from the substation property lines.13
On December 12, 2007, Staff mailed approximately 1,400 copies of a Notice of Availability for the Draft EIR to commence the 45-day public review process under CEQA. The NOA was distributed to federal, regional, and local agencies; elected officials; and property owners within 300 feet of the Proposed Project alignment. Citizens and community organizations who expressed interest in the El Casco Project were also added to the mailing list. In addition, copies of the full Draft EIR and appendices were distributed to approximately 70 interested parties and agencies, the State Clearinghouse, and the five public repository sites. Fifty two copies of the electronic version of the Draft EIR were distributed on CD-ROM to interested parties and agencies. Additional copies of the electronic version of the Draft EIR on CD-ROM plus a bound version of the Executive Summary were distributed at the two public informational workshops and two public participation meetings.14
Notices of the issuance of the Draft EIR as well as of the public informational workshops and public participation meetings were published in five local newspapers.15
Two informational workshops and two public participation meetings were held at the City of Banning Council Chambers on January 9, 2008. A total of 33 members of the public were documented as in attendance.16
A number of comments were received on the Draft EIR from public agencies, community groups and individuals, as well as from SCE. The public agencies who commented were: the Morongo Band of Mission Indians; the U.S. Dept. of Transportation - Federal Aviation Administration; County of San Bernardino Land Use Services Dept.; Riverside County Flood Control and Water Conservation District; the San Bernardino National Forest; the California Department of Transportation - Division of Aeronautics; and the City of Calimesa. These agencies raised specific concerns which were addressed in the Final EIR.
The community organization who commented was the Sun Lakes Country Club, which stated it was neutral regarding the alternatives. In addition, 60 individuals provided written comments, and seven individuals were identified in the transcript from the public meetings, all of whom preferred the PUA.
A Final EIR was prepared pursuant to CEQA guidelines, and released by Staff on April 18, 2008. The Final EIR included all aspects of the Draft EIR; outlined the steps required to develop the Final EIR; incorporated comments from the applicant, public agencies and the public; addressed responses to those comments by the staff acting as Lead Agency; and included a final version of the MMRCP.
In response to these public comments on the Draft EIR, a number of revisions were made in the Final EIR, including removing the reference in the Executive Summary to the selection of the Proposed Project as the environmentally superior alternative. The Final EIR unambiguously found the PUA to be the environmentally superior alternative.
SCE provided comments and substantial additional testimony related to the ambient noise level and noise associated with operations of 115 kV lines, which led Staff to reevaluate the analysis and conclusions of the Final EIR. Therefore, Staff recirculated the EIR on July 9, 2008. The Recirculated Draft EIR revised the noise analysis to find that none of the alternatives had a significant environmental impact, and changed the determination of the environmentally superior alternative to the Proposed Project.
A Notice of Availability for the Recirculated Draft EIR was issued on July 9, 2008, commencing a new 45-day public review process under CEQA. The NOA was mailed to the same approximately 1,400 parties as the Draft EIR. The NOA was distributed to federal, regional, and local agencies; elected officials; and property owners within 300 feet of the Proposed Project alignment. Citizens and community organizations who expressed interest in the El Casco Project were also added to the mailing list. In addition, copies of the Recirculated Draft EIR were distributed to approximately 60 interested parties and agencies, the State Clearinghouse, and the five public repository sites. Sixty-three copies of the electronic version of the Recirculated Draft EIR were distributed on CD-ROM to interested parties and agencies.17
Notices of the issuance of the Recirculated Draft EIR were published in the same five local newspapers.18
A number of comments were received on the Recirculated Draft EIR from public agencies, community groups and individuals, as well as from SCE. The City of Banning's Office of the Mayor commented in support of the PUA and arguing that the long-term benefits to the community outweigh the costs of delay and increased environmental impacts during undergrounding. The Sun Lakes Country Club requested that the Commission consider the health, safety and welfare of the residents. In addition, three individuals provided written comments, all of whom preferred the PUA. All of the proponents of the PUA questioned the decision to change the environmentally superior alternative back to the Proposed Project.19
The Recirculated Final EIR was prepared pursuant to CEQA guidelines, and released by Staff on October 17, 2008. The Recirculated Final EIR includes all aspects of the previous environmental documents; incorporates comments from the applicant, public agencies and the public; addresses responses to those comments by the staff acting as Lead Agency; and includes a final version of the MMRCP. The Recirculated Final EIR makes some revisions to the previous drafts, which are comprehensively noted in the document.20
SCE noted in its comments on the proposed decision that Mitigation Measure HAZ-10 is infeasible, because it requires SCE to provide affected property owners with 30 days notice prior to reenergization of the line. Since the line is currently energized, and will continue to remain energized, this requirement is both unnecessary and infeasible, and shall not be adopted.
6.9.1. Adoption of Recirculated Final EIR
Before granting the subject application, we must consider the Recirculated Final EIR.21 We have done so and find that:
· The Recirculated Final EIR has been completed in compliance with CEQA.
· The Recirculated Final EIR was presented to the Commission, and the Commission has received, reviewed, and considered the information contained in the Recirculated Final EIR.
· The Recirculated Final EIR reflects the Commission's independent judgment and analysis.
We certify and adopt the Recirculated Final EIR it in its entirety, and incorporate it by reference in this decision approving the project. The CEQA findings of the Recirculated Final EIR are appended as Attachment A, and are adopted herein as findings of fact.
The Draft Environmental Impact Report determined that all alternatives, including the NPA, had significant environmental impacts that could not be mitigated. As a result, SCE was directed to provide testimony regarding the economic, legal, social and technological benefits of the alternatives to demonstrate their desirability and feasibility pursuant to CEQA Guidelines §§ 15043 and 15093. Protestants were offered the opportunity to file rebuttal testimony.
6.10.1. SCE's Supplemental Testimony
SCE served its Supplemental Testimony on April 11, 2008, and it is identified herein as Exhibit 1. SCE testified that there is an urgent need for a project to serve the Electrical Needs Area for two basic reasons. First, anticipated load growth will likely result in rolling blackouts. SCE projects a 5.5% compound growth rate in this area. The local distribution facilities at the existing Maraschino Substation will soon exceed their loading limits, which could lead to rolling blackouts.22 Furthermore, the existing Vista 115 kV System serves a region spanning from the Lake Arrowhead area of the San Bernardino Mountains, through the City of San Bernardino, to the Calimesa/Beaumont area. The area within the Vista 115 kV System is growing at a rate of nearly 3% per year, which could cause the load demand to reach available capacity by 2010.23
Furthermore, the current system configuration leads to unfavorable service reliability. At a regional level, three of the main distribution substations in the Electrical Needs Area (Banning, Maraschino and Zanja Substations) operate in a "preferred/emergency" arrangement, whereby each has a single 115 kV subtransmission source ("preferred line"). If an outage occurs on this preferred line, automated switches inside the substation transfer load to the standby "emergency" line, which is kept energized but does not carry any of the substation's load.24 These switchovers lead to temporary outages of approximately 6-10 seconds in duration. Over the past five years, such interruptions have occurred 27 times at the Banning Substation, 18 times at the Maraschino Substation and 6 times at the Zanja Substation.25
SCE further testifies that the Proposed Project improves load carrying capacity and reliability.26 SCE also contends that the Proposed Project is the best and least costly alternative, as it utilizes an optimized path through existing ROWs.27 SCE contends that underground construction is up to ten times more expensive to build, and is not as easy to maintain.28 Furthermore, undergrounding through the Sun Lakes Country Club community would delay the project by ten months for extended construction with greater construction environmental effects for the benefit of one small community to the detriment of other communities in the Electrical Needs Area.29
SCE testifies that the Northerly Route Alternative would require acquisition of additional ROW that would delay the project, and would lead to overbuilding over existing Banning electric distribution facilities. Furthermore, under the Northerly Alternative SCE would still operate the existing southern 115 kV subtransmission line, resulting in increased areas of impact. 30
6.10.2. Citizens of Sun Lakes Country Club Community Supplemental Testimony
A group of individuals identifying themselves as "Citizens of Sun Lakes Country Club" (SLCC) served its rebuttal testimony on April 29, 2008, which is identified herein as Exhibit 2.
SLCC noted the unanimous support of the Banning City Council for the PUA.31 They contended that the visual obstructions will result in decreased property values as well as have a negative economic impact on the golf course through which they are seeking undergrounding.32 SLCC argues that the existing 115 kV subtransmission line is rarely used, and that the adjacent housing and golf course were constructed based upon an understanding of the existing usage of the ROW.33
SLCC also contended that an overhead subtransmission line is a safety hazard, as the area is both prone to fires as well as having extremely high winds. They contended that power lines can cause fires and that energized lines interfere with firefighter operations.34
SLCC also discussed the EMF impacts, which they contend are a health hazard.35 They contended that undergrounding would qualify as a "low-cost/no-cost" mitigation, arguing that the project costs should consider all transmission projects which impact the area.36
SLCC questioned elements of SCE's testimony. SLCC challenges SCE's growth projections, arguing that the housing market has slowed down for new construction.37 Finally, SLCC challenged SCE's characterization of their community as small, noting the community comprises over 5,000 residents, which is almost a quarter of the population of Banning. They noted that no residents have submitted comments in favor of an overhead line.
6.10.3. Statement of Overriding Considerations
In considering which alternative to adopt, the Commission notes that the Proposed Project is the environmentally superior alternative in the Recirculated Final EIR, and that the No Project Alternative also has significant environmental impacts that cannot be mitigated. Any choice of alternative before the Commission, including making no choice, will lead to some significant environmental impact that cannot be mitigated.
The residents of Sun Lake Country Club have raised important issues, but they do not rise above the clear and urgent need for the project. The present network configuration is prone to interruptions, and capacity is nearly exceeded today. Even with the economic slowdown, there is no substantive evidence that there will be no growth or a decline in demand. Therefore, some project is needed. Choosing the Northerly Alternative would result in overbuilding and delay, and would have greater environmental impacts.
The PUA has serious problems which cannot be overlooked by the Commission. First, undergrounding is very expensive, and the costs of undergrounding far exceed what is reasonable for a "low-cost/no-cost" mitigation measure for the El Casco Project. Second, this alternative would delay construction, and would cause far greater environmental impacts during construction. Third, while undergrounding would reduce fire risks, the Draft EIR addressed mitigation measures for the Proposed Project which adequately mitigate those risks.38
Finally, there is a serious question of reasonableness of undergrounding to benefit one community at the expense of all of SCE's ratepayers, especially since there are no technical or other requirements that would make this an appropriate project for undergrounding. SLCC's arguments would apply to any community adjacent to a subtransmission line, and it would be prohibitively expensive to require underground construction for every subsequent subtransmission line.
In light of all of these considerations and to the extent necessary, we find that there are overriding considerations that support our adoption of the environmentally superior alternative, which is the Proposed Project. Each benefit set forth above and throughout this decision constitutes an overriding consideration approving the project, independent of the other benefits, despite each and every significant unavoidable impact.
4 California Code of Regulations, Title 14, Chapter 3 (CEQA Guidelines), § 15050(b).
5 CEQA Guidelines, § 15050(b).
6 PEA, page 5-1, Section 5.1.2.
7 Reference Exhibit A, page 3, Section 2.1.
8 Id., pages 3-4.
9 Id., pages 4-5.
10 Reference Exhibit B, page ES-3.
11 Reference Exhibit B, page ES-46.
12 See Decision (D.) 06-01-042, and D.93-11-013.
13 Exhibit 3, Appendix 5, pages 4-5.
14 Reference Exhibit C, page 2-2 and 2-3.
15 Reference Exhibit C, page 2-2.
16 Reference Exhibit C, page 2-3.
17 Reference Exhibit E, pages 2-3 and 2-4.
18 Reference Exhibit E, page 2-4.
19 Leonhardt questions whether the process for recirculation fully complied with CEQA regulations, including the identification of the author of the Recirculated Draft EIR. All of these environmental reports were authored by Staff, and comply with CEQA requirements.
20 Reference Exhibit E, Section 4.
21 CEQA Guidelines § 15090.
22 Exhibit 1, page 1.
23 Exhibit 1, page 2.
25 Exhibit 1, page 3.
26 Exhibit 1, pages 3-4.
27 Exhibit 1, pages 6-8.
28 Exhibit 1, pages 4-6.
29 Exhibit 1, page 8.
31 Exhibit 2, page 3.
32 Exhibit 2, page 3.
33 Exhibit 2, page 5.
34 Exhibit 2, pages 3-5.
35 Exhibit 2, pages 2-3 and 5-6.
36 Exhibit 2, page 6. Although not specified, SLCC appears to be referencing the Devers-Palo Verde No. 2 line considered in A.05-04-015, for which a Certificate of Public Convenience and Necessity was approved in D.07-01-040.
37 Exhibit 2, page 7.
38 Reference Exhibit B, Section D.7.