8. Appeal
SoCalGas filed an appeal (Appeal) of the Presiding Officer's Decision (POD) on November 10, 2008, pursuant to Rule 14.4. Harbor City responded to the appeal on November 25, 2008.
The Appeal primarily restates the same arguments relied upon by SoCalGas in its previous motions and briefs, which are no more persuasive upon repetition. However, several of the points address the POD in a manner that warrants clarification.
At the heart of SoCalGas' appeal is its lengthy argument that the federal regulations of 49 C.F.R. preempt state regulation of pipeline safety standards. This argument is based upon an incorrect reading of the POD. We are not adopting new standards, or changing state pipeline safety standards to become looser than the federal standards.57 Rather, we are recognizing that determination of construction compliance is properly in the jurisdiction of HCD, the state agency responsible for enforcing construction standards of MHPs; HCD itself incorporates those same federal gas safety standards into its inspection standards. It would be unreasonable for us to do otherwise, as it would be administratively burdensome (perhaps requiring review of plans, drilling test holes for depth, etc.), offensive to our sister agency's jurisdiction, and unfair to MHP operators who rely upon the inspection and certification of HCD in operating their facilities.
Hence, we do not reach SoCalGas' arguments about preemption, because they are not applicable in this case.58
SoCalGas asserts in its appeal that the HCD standards apply only to "general gas `service lines,'"59 which is unsupported by the language of the cited provisions. Furthermore, the fact that HCD reviewed the System and its plans, which clearly specified the gas mains to be at a depth of 18 inches,60 and subsequently approved the System, indicates that HCD's interpretation of its regulations is consistent with the approach taken herein.
Also, SoCalGas argues that the record of the proceeding "is absolutely void of any indication that Harbor City has taken measures to provide adequately for prevention of damage to the main pipelines by external forces."61 This is incorrect. The record shows that HCD inspected the System and certified that it was in compliance with its applicable standards, which incorporate 49 C.F.R. § 192.327(d) by reference. Hence, we may reasonably infer that this element was also met at the time of construction, and no evidence has been introduced to demonstrate that this has changed, or to reasonably undermine HCD's determination of the System's safety.
Minor changes have been made to the POD to resolve typographical, clarifying and other non-substantive matters, as well as to note changes to the procedural history of the proceeding subsequent to issuance of the POD.
57 See Appeal, page 17.
58 SoCalGas questions the jurisdiction of the Commission to require that gas utilities not set their discretionary safety standards in a manner which conflicts with state law. This is based upon an incorrect reading of 49 C.F.R. § 192.13(c), as discussed above in Section 3.2 and its associated footnotes. There is therefore no preemption issue presented by that requirement.
59 Appeal, page 11.
60 Exhibit 5.
61 Appeal, page 13.
