2. Background
Pacific Gas and Electric Company (PG&E) constructed a natural gas pipeline, Line 401 (L-401), in an existing easement across a property owned by the federal government, known as the Antenna Farm, in 1993. In 2006, the property was transferred to the City of Tracy (City). After extensive debate in the local community, the City decided to develop a youth athletic facility on the property.
Under U. S. Department of Transportation (DOT) regulations1 and Commission General Order (GO) 112-E, the City's decision to use the site for a youth athletic facility will change the classification of L 401 from Class 1 to Class 3 in accordance with 49 Code Federal Regulations (CFR) Section 192.5, because of the increased density of use of the property. As a result, PG&E was required to either: (a) reduce the operating pressure of L 401, (b) replace segments of L 401, or (c) apply for a waiver of these requirements.
In March 2004, PG&E applied to the Commission for a waiver of the above requirements for the portion of L 401 covered by the youth athletic facility and, based on the pipeline integrity management principles set forth in DOT regulations,2 proposed alternative safety and mitigation measures to protect the public. On December 14, 2004, the Commission granted PG&E's waiver request in Resolution SU-58. Resolution SU-58 also requires PG&E to comply with certain safety and mitigation measures, including also, construction on this site.
On October 17, 2006, the City approved a contract, referred to in the City Council agenda as a construction contract, for the removal of antenna poles and guy wires from the property. According to the proposed settlement agreement, City staff did not notify PG&E of this proposed work, and PG&E therefore did not install temporary construction fencing or implement other safety measures required by Resolution SU-58 during this work on the site.
On March 8, 2007, Carole Dominguez, Complainant (Complainant), a resident of Tracy, filed this complaint against PG&E. The Complaint raised the following issues:
· PG&E had fraudulently obtained a waiver of pipeline safety requirements in Commission Resolution SU-58. Complainant alleged that PG&E had fraudulently obtained the waiver of GO 112-E and DOT Natural Gas Safety Standards for L 401 in Resolution SU-58, by misrepresenting to the Commission that there was no local opposition to City's youth athletic facility project or concerns within the community regarding the safety of L 401, based on its proximity to the youth athletic facility.
· Resolution SU-58 Does Not Resolve Safety Problems Related to the Pipeline. Complainant further alleged that the safety and mitigation measures required by Resolution SU-58 do not fully resolve the safety problems created by the presence of L 401 under the site for City's youth athletic facility. Complainant also alleged that L 401 is a risk to national security because the safety and mitigation measures specified in Resolution SU-58 do not adequately address the risk of explosion in the event of a terrorist attack.
· PG&E Violated the Terms of Resolution SU-58 by Failing to Install Protective Fencing During the Removal of Poles from the Athletic Facility Site. Complainant alleged that PG&E failed to comply with the safety and mitigation measures required by Resolution SU-58 during construction on the site that occurred when City's contractor removed 175 antenna poles and guy wires from the property. Complainant alleged that the removal of poles and guy wires constitutes construction under Resolution SU-58, because City approved a construction contract with a contractor for this work, and the removal of the poles and the guy wires required excavation and the use of heavy machinery and equipment. According to the complaint, L 401 could have been disturbed, either accidentally or intentionally, during this work.
Complainant also alleged that despite her previous request the Commission's Consumer Protection and Safety Division (CPSD) staff failed to notify her of any upcoming Commission action related to L 401 and the site of the youth athletic facility, and neither she nor other concerned members of the local community were contacted regarding the Commission hearing on Resolution SU-58 or PG&E's waiver request.
PG&E filed an answer to the complaint on April 12, 2007. In the answer, PG&E claimed that the complaint should be dismissed and Resolution SU-58 should be upheld for the following reasons:
· Complainant Failed to Follow Proper Procedures to Seek Review of Resolution SU-58. No protests to Resolution SU-58 were filed, and Complainant has not filed either an application for rehearing or a petition for modification. Complainant therefore failed to follow the required Commission procedures to seek review of Resolution SU-58. Moreover, Complainant waited over two years after the Commission's approval of Resolution SU-58 before filing this complaint.
· PG&E and the Commission Gave the Legally Required Notice of the Waiver Application and Adoption of Resolution SU-58. PG&E gave the legally required notice of the waiver application by notifying the Commission and the federal DOT Office of Pipeline Safety of its waiver application. The Commission also gave public notice of the hearing on Resolution SU-58 by posting the agenda for the December 18, 2004 business meeting.
· PG&E did not misrepresent to the Commission that there was no public opposition to the project.
· PG&E did not violate Resolution SU-58 during the removal of poles and guy wires from the site. PG&E stated that since the removal of poles and guy wires from the site was not "construction" of the youth athletic facility, PG&E was not required to comply with the requirements of Resolution SU-58 for protective fencing and other safety measures during these activities.
Decision (D.) 08-02-001 approves a settlement among the parties that fully resolves the issues in the complaint, which relate to the safety of a PG&E natural gas pipeline located under property in the City, on which the City plans to develop a youth athletic facility and finds that the settlement is reasonable in light of the whole record, is consistent with the applicable law, and is in the public interest, as required by Rule 12.1(d).3
D.08-02-001 also found that Resolution SU-58, which granted PG&E a waiver of 49 CFR 192.611 and required additional subsidy and risk mitigation measures related to a portion of the natural gas pipeline located under property on which City planned to develop a youth athletic facility, was moot and no longer in effect.
Robert Sarvey (Sarvey) is a Tracy resident and business owner, who intervened in this proceeding because he felt that the PG&E natural gas pipeline located under the site of the youth athletic facility to be constructed by the City of Tracy is a safety risk to persons using the athletic facility.
1 See 49 CFR Part 192 et seq.
2 See 49 CFR Subpart O (Section 192.901 et seq.)
3 All Rule citations are to the Commission Rules of Practice and Procedure, unless otherwise stated.
