PUBLIC UTILITIES COMMISSION OF THE STATE OF CALIFORNIA
ENERGY DIVISION RESOLUTION E-3785
August 22, 2002
Resolution E--3785. Executive Director's order dismissing the protest by Cardoza Enterprises to Pacific Gas and Electric Company (PG&E) claim of exemption from General Order 131-D permitting requirements for relocation of a portion of the existing Gronemeyer Tap 60 kilovolt (kV) line in the City of Lathrop. This resolution approves PG&E's Advice letter 2242-E.
By Advice Letter 2242-E. Filed on May 7, 2002.
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SUMMARY
This Resolution, approves PG&E's Advice Letter 2242-E with an effective date of today. Pursuant to this advice letter, PG&E plans to relocate a portion of the existing Gronemeyer Tap 60 kV Line #107 as requested by the City of Lathrop. The project is necessary to accommodate the City of Lathrop's plan to construct an overcrossing of the Union Pacific Railroad Company.
The planning and construction of electric generation, transmission/power/distribution line facilities and substations are governed by the Commission's General Order (GO) 131-D.
By letter dated May 20, 2002,1 Cardoza Enterprises protested Advice Letter 2242-E. The protestant stated that the City of Lathrop and PG&E have no right of possession on this project and that the land necessary for this grade separation is still under negotiations with the City of Lanthrop. This concern does not have any bearing on PG&E's application of the specific exemptions of GO 131-D to this project. The project falls within and qualifies for the exemptions cited by PG&E. Therefore, the protest is denied for failure to state a valid reason.
BACKGROUND
Electric utilities proposing to relocate transmission lines must comply with GO 131-D which, among other things, provides for filing an application for a Permit to Construct unless the project is exempt for certain reasons specified in Section III.B. of the GO.
In Section XIII, GO 131-D provides that any person or entity may protest a claim of exemption for one of two reasons: 1) that the utility incorrectly applied a GO 131-D exemption, or 2) that any of the conditions exist which are specified in the GO to render the exemption inapplicable. GO 131-D, Section III.B.2. states that an exemption shall not apply to a construction project when: 1) there is reasonable possibility that the activity may impact on an environmental resource of hazardous or critical concern where designated, precisely mapped and officially adopted pursuant to law by federal, state, or local agencies; or 2) the cumulative impact of successive projects of the same type, in the same place, over time, is significant; or 3) there is reasonable possibility that the activity will have a significant effect on the environment due to unusual circumstances. If a timely protest is filed, construction shall not commence until the executive Director has issued an Executive Resolution either requiring the utility to file an application for a Permit to Construct or dismissing the protest.
On May 7, 2002, PG&E filed Advice Letter 2242-E. PG&E indicated that the City of Lathrop has requested them to relocate a portion of the existing Groemeyer Tap 60 kV line #107 in order to construct a grade separation over the Union Pacific Railroad Company's tracks approximately ½ mile west of Airport Way. Seven wood poles are affected by this relocation. Two poles will be replaced with taller and larger class poles. The other five poles will be relocated approximately 19 to 40 feet north of the existing pole line. Approximately 1,540 feet of the 60 kV line will be relocated.
PG&E claimed exemption from the requirement to file for a Permit to Construct, as prescribed by GO 131-D, Sections XI.B. and C. PG&E's claim of exemption was based on GO 131-D, Section III.B.1. (f), which exempts "power lines or substations to be relocated or constructed which have undergone environmental review pursuant to CEQA as part of a larger project, and for which the final CEQA document (Environmental Impact Report (EIR) or Negative Declaration) finds no significant unavoidable environmental impact caused by the proposed line or substation." The City of Lathrop has issued a Notice of Exemption dated October 18, 1999, indicating that the project is categorically exempt pursuant to Pubic Resources Code Section 21080.13, exempting railroad grade separation projects.
On May 20, 2002, Cardoza Enterprises protested Advice Letter 2242-E.
On June 4, 2002, PG&E responded2 to the protest by Cardoza Enterprises.
NOTICE
PG&E distributed a Notice of Proposed Construction in accordance with Section XI.B. and C. of GO 131-D, including the filing and service of Advice Letter No. 2242-E in accordance with Section III of GO 96-A.
PROTESTS
Cardoza Enterprises filed a protest dated May 20, 2002. Cardoza Enterprises are the landowners to the north of where the poles are to be relocated. They state that "the City of Lathrop and PG&E have no right of possession on this project. The land to be acquired for this grade separation is still under negotiations with the City of Lathrop." Cardoza Enterprises requests a hearing if this proposed project moves forward without the right of possession.
On June 4, 2002, PG&E responded to the protest of Cardoza Enterprises. PG&E's response argues that the protest should be dismissed because Cardoza Enterprises did not assert that PG&E incorrectly applied a GO 131-D exemption, or that any of the conditions exists as specified in GO 131-D, Section III.B.2, to render the exemption inapplicable. PG&E states that the protestant expressed concern that "the City of Lathrop and PG&E have no right of possession on this project."
In addition, PG&E states that "[n]othing in GO-131-D requires PG&E to perfect all necessary land rights before providing notice of a project in accordance with 131-D. On the contrary, because of the length of the notice procedure and the delays that can occur when protests are filed, land rights are often obtained concurrently with the noticing of a project."
PG&E further states that they "will not begin construction of the project without obtaining a valid right of possession and proper land rights. However, because PG&E has the right to condemn property for public purposes, PG&E can ultimately obtain the property through eminent domain if there is no willing seller. No landowner can prevent PG&E from obtaining land necessary to complete a project."
PG&E reiterated that this project is exempt from the requirement to apply for a Permit to Construct. The relocation of the existing Gronemeyer Tap 60 kV electric power line falls with the exemptions provided under GO 131-D, Section III.B.I. (c)3 and (f).
DISCUSSION
The protestant is concerned that PG&E will conduct this project before the right of possession is resolved.
PG&E followed the notification procedures required in GO 131-D for this project. PG&E appears to have correctly applied the exemptions for obtaining a Permit to Construct set forth in GO-131D, Section III.B.1. (c) and (f).
The protestant has not shown that PG&E incorrectly applied a GO 131-D exemption. Nor has the protestant shown than any of the conditions specified in GO 131-D, Section III.2. exist. Because those are the only two valid reasons for sustaining a protest, the protest should be denied.
FINDINGS
1. PG&E filed Advice Letter 2242-E on May 7, 2002.
2. PG&E plans to relocate a portion of the existing Gronemeyer Tap 60 kV Line #107. This project is necessary in order to construct a grade separation over the United Pacific Railroad Company's tracks.
3. PG&E requests an exemption from a Permit to Construct, under GO 131-D, Section III.B.1. (c) and (f).
4. PG&E distributed a Notice of Proposed Construction in accordance with Section XI.B. and C. of GO 131-D, including the filing and service of Advice Letter No. 2242-E in accordance with Section III of GO 96-A.
5. Cardoza Enterprises filed a protest by a letter dated May 20, 2002.
6. The protestant raised concerns that the City of Lathrop and PG&E have no right of possession on the land where the project will be conducted.
7. By the letter dated June 4, 2002, PG&E responded to the protest. PG&E contends that the protest should be denied because it does not assert that PG&E has incorrectly applied a GO 131-D exemption or that any of the conditions exist which are specified in the GO to render the exemption inapplicable.
8. PG&E stated it would not begin the project until the right of possession is resolved.
9. PG&E followed the notification procedures required in GO 131-D for this project.
10. GO 131-D provides that any person or entity may protest a claim of exemption for one of two reasons: 1) that the utility incorrectly applied a GO 131-D exemption, or 2) that any of the conditions exist which are specified in the GO to render the exemption inapplicable.
11. The protestant has not shown PG&E incorrectly applied a GO 131-D exemption. Nor has the protestant shown that any of the conditions specified in GO 131-D Section III.B.2. exist.
12. PG&E has correctly applied a GO 131-D exemption.
THEREFORE IT IS ORDERED THAT:
1. PG&E's Advice Letter No. 2242-E is approved.
2. The Cardoza Enterprises' protest is denied.
This Resolution is effective today.
I certify the foregoing under the authority of General Order 131-D. Dated August 22, 2002, at San Francisco, California
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WESLEY M. FRANKLIN
Executive Director
1 Though the letter from Cardoza Enterprises was dated May 20, 2002, the Energy Division did not receive this letter until May 28, 2002.
2 In PG&E's response, it is indicated that they received the protest by Cardoza Enterprises on May 28, 2002. This is the same date that the Energy Division received the protest. Consequently, PG&E did respond to the protest within the 5-day period as required.
3 Section III.B.1. (c) was not indicated in PG&E's Advice Letter 2242-E as support for exemption for the project. Item ( c) states "the minor relocation of existing power line facilities up to 2,000 feet in length, or the intersetting of additional support structures between existing support structures." Since the project would involve the relocation of approximately 1,540 feet of the power line, Section III.B.1. (c) would apply as support for exemption.
